May 09, 2004

William Rehnquist Is Right

The Legal Theory Blog talks about "strict construction":

Legal Theory Blog: Lexicon: Strict Construction & Judicial Activism.... This entry in the Legal Theory Lexicon is a bit unusual. Rather than explicating concepts that are important to legal theory, the point of this post is to debunk two concepts that are unimportant (or even meaningless), strict construction and judicial activism.

Strict Construction

Strict construction is short hand for the idea that the United States Constitution should be strictly construed. The phrase appears to have become popular as a campaign slogan used by Richard Nixon when he ran for President in 1968. Nixon promised that he would appoint judges who were "strict constructionists" as opposed to the "judicial activism" that characterized the Warren Court. The question is: what does strict construction mean? Is there really a method of constitutional interpretation described by the phrase "strict construction" or is this a mere political slogan? The confusion engendered by the term is illustrated by the following definition (offered on law.com):

strict construction (narrow construction) n. interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. By contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society.

This definition borders on incoherence, opposing "strict construction" to both originalism and to the notion of a living constitution--ideas that might be thought antithetical to one another. So can we offer a better definition of strict construction...

We can. When William Rehnquist worked for Richard Nixon at his Justice Department, Rehnquist offered an alternative definition of "strict constructionism": a strict constructionist is a judge who is hostile to criminal defendants and to civil rights plaintiffs. Rehnquist was correct. The phrase "strict constructionist" is not meaningless. And it is not unimportant.

Posted by DeLong at May 9, 2004 05:47 PM | TrackBack | | Other weblogs commenting on this post
Comments

My daughter is finishing her first year at a name brand law school and one of her courses was constitutional law. We have talked about this subject at length, it seems clear to the both of us that the Supreme Court does not reason its way to many of its holdings in any really coherent way. So I agree with the blog that the terms “strict construction” and “judicial activism” are largely meaningless as used in current political discourse. That does not mean we can’t detect when the court over reaches. For example the constitution says the president must be at least 35 years old. “. . .neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, . . .” Now if we should one day switch to the octal number system as our standard notation, that does not mean that “35” now means a person is eligible to be president at twenty nine because the constitution is a living document, and the court believes that people are now mature enough to be president at twenty nine. And that “35” can be updated to mean “29”. No we would say that the court has over reached. Thirty five means just that, 35; that’s want the framers wanted, that’s what the states ratified. A stark case of original intent. If you want 29 then amend the constitution. The constitution specifies "[An] Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." That seems plain enough, an “enumeration” means a census, you count. Can you replace “enumeration” with “statistical estimation” so we count and adjust the results using modern statistical theory to correct or fudge the results. This question was before the court recently. If you think yes “enumeration” does not mean a census, then don’t object when 35 = 29. Perhaps I can’t define “over reaching,” but like pornograpy I know it when I see it.

Posted by: A. Zarkov on May 9, 2004 07:20 PM

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In a similar vein, since the constitution doesn't allow for "incomplete enumerations", I guess literalists would be against such a thing.

Correct?

Posted by: djs on May 9, 2004 07:39 PM

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As those terms are now used I would agree. In the state context, though I think it does --or did--exist. Traynor while A Cal Sup. CT. justice created a whole new tort, intentional infliction of emotional distress when he could have handled a case under a false imprisonment theory. Likewise California went a little bit crazy piercing the corporate veil. One professor I had said that Traynor was responsible for making law school 3 years instead of 2.

Posted by: Abby on May 9, 2004 07:46 PM

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"a name brand law school"- does that imply a corporate sponsorship?

Posted by: john c. halasz on May 9, 2004 08:02 PM

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The octal argument is rather weak. After all, the right to bear arms doesn't just refer to those arms available at the time the Bill of Rights was written. The word "arms" now includes a lot of newer stuff. Of course, the "right to bear arms" could mean, as I first thought when I heard it, that you can't be refused enlistment in the military.

As for the census. We know we can't get a perfect count. We know how to get a lousy count. We know how to get a better count. Since we can't get a perfect count, we should get the best count we can. That means using statistical techniques to figure out how good our count is and what the perfect count is most likely to be.

Posted by: A Kaleberg on May 9, 2004 08:17 PM

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"The perfect count." Ya mean like redistricting, and the electoral college?

Posted by: Pro Bono on May 9, 2004 08:28 PM

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When exactly did the GOP become so hostile to blacks? As I understand it, the first switch to the Dems for black voters was during FDR. But Ike integrated the military. So he was not hostile. Ike must have approved Federal agents to enforce those school desegregation orders.

Was Nixon in 60 the change? or was Goldwater anti-black? Or was this a shift that occurred after the voting rights act and end of Jim Crow? I know that Carter first appointed a black woman to the cabinet. Is this something where the Democrats lead and the GOP follows? The history books are not real clear and the GOP likes to talk in code so it is difficult to gage their true intentions. I know that Rehnquist started in politics by denying blacks in Arizona the right to vote. I know the GOP uses a number of tactics to keep blacks from voting or being eligible to vote. After the Civil War, almost all blacks were GOP. Now over 90% are Democrats. How did we get to this point?

Posted by: bakho on May 9, 2004 08:40 PM

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strict constructionism means the justices cannot pull the decision out of their asses, like they pulled Roe vs. Wade. Just because something is a good idea, it does not make it a part of US Constitution in broad reading. The legislature exists to enforce the will of the majority - not the court of law.

Posted by: bubba on May 9, 2004 09:12 PM

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From the online OED

enumeration: 1. The action of ascertaining the number of something; esp. the taking a census of population; a census

census: 3. a. An official enumeration of the population of a country or district, with various statistics relating to them.

I was going to make the point that the primary meaning of enumeration seems to be 'ascertaining' and that a census is a secondary meaning. Seems like it could mean either, though. But clearly the first meaning given, 'ascertaining', can cover more than a census. Seems like ascertaining can include statistical estimation if you know the census is incomplete.

The modern usages seem to go back before 1789, at least from the example provided. I didn't expect the threat of a circular definition, though.

Anyway, the census controversy seems less clear cut than what base is used for counting up to 35(base 10).

Posted by: jml on May 9, 2004 09:30 PM

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bubba -

The constitution simultaneously legitimizes but also constrains the actions of the majority.

You can't have one without the other.

Posted by: djs on May 9, 2004 09:50 PM

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djs: The constitution simultaneously legitimizes but also constrains the actions of the majority.

Sure - but unrelated to broad vs. strict constructionism.

Posted by: bubba on May 9, 2004 10:16 PM

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Oops, I should have said “brand name” law school. I mean a law school that most people would recognize, like “Harvard Law.” The census case is convoluted (Department of Commerce v. US House of Representatives, 1999), and Rehnquist and the court ducked the constitutional question by holding that the Census Act prohibits using statistical sampling to determine the population for purposes of apportionment. It’s clear from reading the decision that Rehnquist doesn’t understand statistics, but he has plenty of company there. As I recall, the use of sampling was actually opposed by some statisticians like David Donoho at Stanford and Leo Breiman at Berkeley. It’s true given finite resources you can get a better estimate with sampling than with enumeration. But of course the framers didn’t know about sampling, and they obviously meant enumeration and said so. Just as they meant 35 and said so. Textualists would say go for enumeration because that’s what’s written. Originalists might say go for statistical sampling because the framers were after the best estimate of the population. But we all know the whole thing was about politics. Democrats want sampling because that would increase the population in states like New York, and of course Republicans want the opposite. Rehnquist is a Republican, so that’s the way it went. It’s not about law, it not about logic, it’s about having a Supreme Court that has become an un-elected political institution.

Posted by: A. Zarkov on May 9, 2004 10:46 PM

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A. Zarkov wrote, "Democrats want sampling because that would increase the population in states like New York, and of course Republicans want the opposite."

No, Democrats wanted sampling because it would accurately measure the population in states like New York.

"It’s not about law, it not about logic, it’s about having a Supreme Court that has become an un-elected political institution."

Uh huh. And it wasn't a "political institution" when it decided *Plessy v. Ferguson*, *Lochner v. New York*, or *Korematsu v. United States*?

Posted by: liberal on May 9, 2004 11:46 PM

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“Uh huh. And it wasn't a "political institution" when it decided *Plessy v. Ferguson*, *Lochner v. New York*, or *Korematsu v. United States*?”

Those were of course decisions that were influenced by politics. However up until the New Deal the court very rarely overturned legislation. Today usurpation of legislative prerogative is much more common, and not only at the level of the Supremes. We have courts ordering property taxes raised, and recently in Illinois, a judge ordered the State Treasurer to raise his pay! Under threat of contempt!

“No, Democrats wanted sampling because it would accurately measure the population in states like New York.”

If you believe that, I’ve got a nice used car for you, only driven on Sundays.

Posted by: A. Zarkov on May 10, 2004 01:32 AM

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I will fully agree that no statistical jiggering of the raw count in the Census should be allowed without approval by a supermajority of the Supreme Court -- and then only ratifying it for use in that one particular Census. This does not alter the fact that just about every statistician and social scientist who's looked into this matter has concluded that the raw Census count DOES understate the strength of poor and urban voters, and therefore of Democrats.

Posted by: Bruce Moomaw on May 10, 2004 02:27 AM

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For the record, let it be noted that "strict constructionists" share a few other, less widely recognized, traits:

For one thing, they're organized--

----------------

March 2000

The Federalist Society: The Conservative Cabal That's Transforming American Law

By Jerry Landay

http://www.washingtonmonthly.com/features/2000/0003.landay.html

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--Then there's the fact that they're all big fans of (Jeb Bush's) big brother--

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Federalist Society Becomes a Force in Washington: Conservative Group's Members Take Key Roles in Bush White House and Help Shape Policy and Judicial Appointments

By Thomas B. Edsall

Wednesday, April 18, 2001

http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A30099-2001Apr17¬Found=true

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--And finally, there's the fact they're all rather fond of big, REALLY big, (monkey) 'bidness' too--

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"The story last week wasn't the judgement from the Court of Appeals. It was the manifesto attached to it!

Chris Adams

WASHINGTON -- July 20, 1998 --

...Anyone who has covered Washington over the last 20 years should know about Laurence Silberman. His name has been linked with multiple right wing scandals. He is also a member of the extremist Federalist Society (hey -- Ken Starr's a member, too!).

A sampling:

In 1980, former Reagan National Security Advisor Richard Allen met with a representative of the Iranian Government in a hotel room in Washington. They discussed the early release of the hostages being held in Iran. Allen has claimed that he rejected the Iranian's offer to try to prevent the hostages from being released before Election Day. However, many still believe there was some kind of deal made to prevent an "October Surprise" that would have helped President Jimmy Carter's election chances. Allen's companion in the hotel room: Reagan campaign advisor Laurence Silberman.

Oliver North's convictions for his activities in Central America were successfully appealed. Who shaped the Appeals Court decision? Judge Laurence Silberman. Despite being involved in negotiations with Iranian agents in 1980, Silberman neglected to recuse himself from North's case. He also had a personal conflict with North trial judge Gerhard Gesell, which, according to Lawrence Walsh should also have been grounds for recusal.

Until recently, Judge Silberman's antics could be seen in the Microsoft antitrust case. When a fellow jurist took a hard line against the software giant for violating a 1994 consent decree, Silberman tried to have the judge stripped of the case. Fortunately, Silberman's antics in the Microsoft case ceased when he was notified that his owning Microsoft stock and his involvement in the antitrust case were incompatible..."

http://www.americanpolitics.com/072198Adams.html


Posted by: Mike on May 10, 2004 03:03 AM

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up until the New Deal the court very rarely overturned legislation

This is about as ignorant an assertion as it's possible to make. The entire history of the anti-New Deal court from Lochner onto the mid-1930s was to strike down any progressive legislation the conservative Court majority thought was unwise, including wage and hour, child labor, and other social reform legislation. Justices like Taft, VanDeventer, McReynolds, and Sutherland all believed it their duty to "defend" the country against social legislation of which they disapproved. The legislation they invalidated has since become unthinkable to attack, let alone repeal.

Interesting how, on the other hand, the cases for which the far right wanted to impeach Earl Warren (a Republican nominated by a Republican) have largely become uncontested and often iconic features of the American political and social landscape -- Brown, Reynolds v. Sims (one person one vote), even Miranda.

And BTW, Bork -- who was supposed to be the leading exponent of so-called "originalism" -- wrote exactly one paragraph of actual discussion about Framers' actual intent prior to the time he was nominated to the Supreme Court, and that was a gross misinterpretation of another analyst, Leonard Levy. IOW, the whole originalism thing is a scam of conclusory assertion without any serious scholarship about it.

I've never seen any discussion by these so-called originalists about 17th century English history, which was most of what was in the minds and "intent" of the Framers as to what they wanted to prevent or defend.

Posted by: Steady Eddie on May 10, 2004 05:21 AM

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A. Zarkov wrote, "Those were of course decisions that were influenced by politics. However up until the New Deal the court very rarely overturned legislation."

You're changing the subject to fit your argument. Your prior claim was that the Supreme Court was an unelected political body, NOT that it was an unelected legislative body.

Furthermore, why put the historical line at the New Deal? And please answer Steady Eddie's point while you're at it. Finally, do you think the the Courts that ruled on *Plessy* and (presumably) oversaw the extension of Jim Crow to the Federal workforce under Wilson to be "less political" than the Court is now? If so, why?

" 'No, Democrats wanted sampling because it would accurately measure the population in states like New York.' If you believe that, I’ve got a nice used car for you, only driven on Sundays."

You're wrong. I didn't state the Democrats didn't want to inflate (legitimately or otherwise) the number of registered Democrats. I stated their support for sampling was based on a conviction that it would more accurately measure the population. That is certainly correct, because the Democrats would benefit from a more accurate measure of the population. Similarly, the Republicans opposed more accurately measuring the population, because it would harm them.

Posted by: liberal on May 10, 2004 07:19 AM

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--No, Democrats wanted sampling because it would accurately measure the population in states like New York.--

No. Democrats wanted sampling because it would accurately measure the population in states like New York *and* because it would increase the number of Democrats in the House of Representatives.

:-)

Posted by: Brad DeLong on May 10, 2004 07:30 AM

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A. Zarkov, normally one of the sensible commentators around here, writes:

“No, Democrats wanted sampling because it would accurately measure the population in states like New York.”

If you believe that, I’ve got a nice used car for you, only driven on Sundays.

He also writes:

It’s true given finite resources you can get a better estimate with sampling than with enumeration.

How can both be true?

I'm not being sarcastic about saying that Mr. (?) Zarkov's comments are usually worthwhile. What gives?

On the merits, I think that "enumeration" means "ascertainment" as noted above. That means one of two things to me. 1)Use statistics to get the best estimate possible, or 2)Hold that the Constitution requires that Congress appropriate enough money for a complete in-person count, however much that takes. In other words, require Congress to raise taxes and spend the money a certain way. I think it's number one, and I don't recall ever hearing anyone suggest number two.

Posted by: Jonathan Goldberg on May 10, 2004 07:36 AM

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Bakho -- I'm pretty sure that the success of Wallace in the 1968 election was the turning point. Nixon realized that Wallace was taking votes from the Democrats and that those were his to pick up, and in 1972 he did. 1948-1972 was a long transition, with lots of balls in the air, but it was clinched in 1972. (1948 was the Dixiecrat rebellion against Humphrey's civil rights talk).

Above Zarkov called up the "equality of results" definition of objectivity / neutrality beloved by Republican media critics and the clown media. If a conclusion benefits the Democrats, it's partisan and biassed.

The principle is used much less in the other direction, probably because the Democrats are so lame and badly-organized and funded.

Conservatives hate "equality of results" when it's used as a test for social equality, but they like it fine when it helps them intimidate the liberal press. A lot of the facts about the early life of George W. Bush (not just his Guard service) are rather unfavorable, so the major media never mention them. Contrast the treatment of Gore and now Kerry -- www.dailyhowler.com is the place to look.

Posted by: Zizka on May 10, 2004 08:55 AM

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But Brad, I wrote "That is certainly correct, because the Democrats would benefit from a more accurate measure of the population." ;-)

Posted by: liberal on May 10, 2004 09:11 AM

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bakho wrote, "Or was this a shift that occurred after the voting rights act and end of Jim Crow?"

I don't know all the details of the shift. I do know that *some* of the shift occurred in the late 60s, was termed the "Southern Strategy," and one of its architects was Kevin Phillips.

One assumes that most of the shift was a result of the civil rights policies of LBJ and the ensuing support of the national Democratic party for minority rights.

Note in passing that Woodrow Wilson was a Democrat and a vile racist; he extended Jim Crow to the Federal workforce. (See, for example, _Simple Justice_, the seminal work on _Brown v. Board of Education_.)

Posted by: liberal on May 10, 2004 09:19 AM

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Jonathan Goldberg wrote, "I'm not being sarcastic about saying that Mr. (?) Zarkov's comments are usually worthwhile. What gives?"

A charitable explanation was that he misinterpreted my post when I wrote that "No, Democrats wanted sampling because it would accurately measure the population in states like New York." Which is true. Zarkov (and Brad, apparently) parsed my comment as "Democrats wanted sampling because it's more accurate, because Democrats are even-handed," which is not logically equivalent to what I wrote.

I'd never deny that the Democrats might have partisan motives. Rather, my objection was to Zarkov's use of the phrase "increase the population." Most explicitly, the Democrats want an accurate count, because it would help them; the Republicans want to undercount the urban poor, because it would help them.

Posted by: liberal on May 10, 2004 09:32 AM

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I'd actually say that the shift started with TEDDY Roosevelt.

Because of his actions against Black soldiers, essentially kicking them out of the army for shootings conducted by racist townsfolk in Brownsville, TX, WEB duBois, endorsed the Democratic (IIRC Bryant).

This was the first time that a black leader endorsed a Democratic presidential candidate, and it made this action thinkable.

The 2nd Roosevelt, FDR, got significant black support because he was taking action against the Great Depression, which hit the black community ferociously hard.

It was FDR's new deal that put black support for Democratic candidates in the double digits, even though he was relatively indifferent to racial issues. (Eleanor was not, of course)

Then you have Truman integrating the military, and being generally, though not stridently pro-immigration.

At this point, the black electorate is in play.

The final two parts of this are:

* Johnson's passage of the 1964 Civil Rights Act, and Goldwater's "Southern Strategy", which gave tacit support to segregation under the mantle of "states rights". Goldwater's rhetoric is expanded upon by Nixon, with his "silent majority", "law and order", etc.

* The final act is Ford dumping Rockefeller for Dole as his running mate. While Done was not a racist, Rockefeller was seen as a real friend to equal rights, and his being dumped pushed a number of blacks uncomfortable with Carter (who went out of his way to praise Lester Maddox when he ran for Governor).

Reagan just solidified the grip that Republicans had on the racist vote.

Posted by: Matthew Saroff on May 10, 2004 10:08 AM

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WELL, I'D say "the shift" AND the fall* STARTED with:

-----------------

"Hayes-Tilden Election (1876)

(The Rise and Fall of Jim Crow)

In 1876, the two major candidates running for President were Rutherford B. Hayes, a Republican, and Samuel J. Tilden, a Democrat. The first returns indicated a victory for Tilden...

http://www.pbs.org/wnet/jimcrow/stories_events_election.html

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*But that's another, not entirely unrelated, story:

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"The Presidency of Ulysses S. Grant (1869–77)

by Frank Scaturro, President of the Grant Monument Association


...Much of what has been passed down as an objective appraisal of Grant's presidency more closely resembles the partisan critiques that were produced by a relatively small group of performers (Sic) [Probably should read: "reformers"]** during the 1870's-- in many ways the intellectual ancestors of the present historical profession. Although such a minority can sometimes be a source of enlightenment, in this case, it has contributed a monolithic picture of a complex era [not entirely unlike our own]** that is about as depressing as it is inaccurate...

...In order to understand the reformers, one must understand the circumstances under which they first came into existence as an organized group dedicated specifically to defeating Grant in 1872 through the Liberal Republican Party. Grant's suspension of habeas corpus in nine South Carolina counties in 1871 marked a singular display of peacetime presidential power, and in Benedict's words, 'The effect was electric. Reformers lamented the sacrifice of 'real' issues, such as the tariff and civil-service reform, to the 'dead' one symbolized by the 'bloody shirt'...and the use of federal troops (in the South) as gross violations of civil liberty, but they were also forced at last to give up their open hostility to equal rights and black suffrage. Announcing a 'new departure,' they promised to accept the finality of the Thirteenth, Fourteenth, and Fifteenth amendments. The new departure enabled Democrats, reform Republicans, and some Republican politicians who had lost power in their party to unite against Grant's reelection. Calling themselves Liberal republicans, the dissident Republicans met...(in 1872 ) to name a candidate whom the Democrats would endorse'.

The administration's success that led to the 'new departure' was one of President Grant's crowning achievements, but Grant would pay dearly for it in history. Having lost their old focus and finding themselves desperately in need of a new one, the Liberal Republican movement began to focus upon what they questionably termed corruption. Both the birth and the survival of Grant's enemies as a group specifically 'focused on Grant himself and the new politics of the Gilded Age' was deeply intertwined with Grant's dedication to Reconstruction. '(Liberal reform had come to view Reconstruction as an expression of all the real and imagined evils of the Gilded Age,' Historian Eric Foner asserted, and 'the rise of (pro-Grant) Stalwarts did less to undermine Republican Southern policy than the emergence of an influential group of party reformers whose revolt against the new politics of the Grant era' caused them to "demand...an end to Reconstruction'.

It is the centrality of Reconstruction issues in Grant's political situation that has led to a great deal of oversight by historians. Grant's years in office cannot be understood if the politics of the Gilded Age is separated from the politics of Reconstruction. Both were primary features of the 1870's, and in order to understand Grant's political situation, historians must recognize how fundamental the inconsistency was between the reformers' revered conception of government by the best educated and the notion of black rule in the South, the latter being an essential part of Grant's program. The president's dedication to Reconstruction, which endured even after most national leaders declared it misguided, produced a civil rights record which, according to Richard N. Current, made Grant, 'in a certain respect, one of the greatest presidents" with whom "only Lyndon B. Johnson can even be compared...'"

http://saints.css.edu/mkelsey/presid.html

**[My words. NOT the author's.]

Posted by: Mike on May 10, 2004 11:04 AM

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I remain convinced that the swing we are talking about was finalized in 1972 and was decided upon in 1968. Before that time both parties could contest the black vote. Since then, not. During 1948-1968 the Democrats were gradually losing their grip on the white southern vote, but it didn't happen all at once. The Democratic promotion of Civil Rights, ultimately gained them the black vote and lost them the whgite Southern vote. Everything before 1948 was a back-and-forth movement, with the white southerners solidly democratic and the black voters divided.

Posted by: Zizka on May 10, 2004 01:47 PM

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Original Intent And The Constitution. (James Boyle)
http://world.std.com/~mhuben/intent.html

"Listing the arguments against it is the kind of arduous, lengthy and repetitive task which Victorians believed suitable for the rehabilitation of convicts. I undertake it here in the hope of acquiring virtue. "

Posted by: Mike Huben on May 10, 2004 06:10 PM

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liberal says: “You're changing the subject to fit your argument. Your prior claim was that the Supreme Court was an unelected political body, NOT that it was an unelected legislative body.”

Yes I am using the terms “political” and “legislative” somewhat interchangeably. I will try to clarify what I mean. When the court overturns legislation with weak constitutional justification for such a holding, I deem that “political.” This happened during the New Deal, so much so that FDR made his famous attempt to “pack the court” in order to get a majority more in sympathy with his New Deal program. On the other hand, when the Supreme Court (or any other appellate court for that matter) interprets legislation in a manner that so twists the clear meaning of the legislative text, or subverts the original intent of the legislation, I deem that “acting like an un-elected legislative body.” The Ninth Circuit is famous for doing this. Recently the Ninth reinterpreted federal legislation that authorizes the eviction from public housing of any tenant or guest of a tenant that uses or deals in illegal drugs. They didn’t say the legislation was unconstitutional, they simply read the text a different way. Later the Supreme Court overturned the Ninth with a holding that included a grammar lesson. The Ninth was acting like a bunch un-elected legislators.

Steady Eddie says: “The entire history of the anti-New Deal court from Lochner onto the mid-1930s was to strike down any progressive legislation the conservative Court majority thought was unwise, ... “

True, the court was being very political in trying to undo the New Deal. That’s my very point. Before the New Deal era, the Supreme Court rarely overturned legislation. But during and after the New Deal era, we see the court frequently overturning legislation. That’s what I said, and that’s what I meant. The Warren court did it, the Berger court did it and they do it today.

liberal says: “Which is true. Zarkov (and Brad, apparently) parsed my comment as "Democrats wanted sampling because it's more accurate, because Democrats are even-handed," which is not logically equivalent to what I wrote.”

True, I misread you.

“Most explicitly, the Democrats want an accurate count, because it would help them; the Republicans want to undercount the urban poor, because it would help them.”

True again. But if an accurate count would hurt the Democrats they would oppose it.

As a final note, the question of sampling being more accurate than enumeration is true in theory, but not necessarily in practice. I believe Leo Breiman has written on this, and I can’t remember exactly what his objections to sampling were. It could be that the methodology to correct the under count as proposed by the Census Bureau was defective. I was making a general statement about sampling versus enumeration.

Posted by: A. Zarkov on May 10, 2004 07:55 PM

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A. Zarkov wrote, " 'Most explicitly, the Democrats want an accurate count, because it would help them; the Republicans want to undercount the urban poor, because it would help them.'

"True again. But if an accurate count would hurt the Democrats they would oppose it."

Perhaps. But the fact is that the Democrats are on the right side of the matter (that is, trying to get adequate representation for the entire population, whether by sampling or, as other posters discussed above, by spending more to get an accurate count).

In a related example, Democrats oppose the attempts of Republicans like Katherine Harris to disenfranchise large numbers of blacks. You can argue that they do it only for partisan advantage, or you can draw other conclusions.

Posted by: liberal on May 11, 2004 02:49 AM

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Zarkov -- so the New Deal Era started in 1893? That's when Supreme Court Justice David Brewer called explicitly for judicial activism to strike down social legislation, and in 1895 the Supreme Court voided several federal laws on what you would call political (really non-constitutional policy grounds). And the Lochner decision came in 1905, and was followed by a string of other decisions invalidating federal and state social legislation long before 1933.

There's a good argument that Dred Scott was one of the worst examples of judicial activism because it invalidated the Missouri Compromise by holding that Congress could not prevent the expansion of slavery.

You simply compound the clear evidence of your historical ignorance by these assertions. It's on a par with self-proclaimed "originalists" who never bother themselves with a serious look into what the Framers really thought, but believe it's enough to cherry-pick dictionary definitions to define original intent.

Posted by: Steady Eddie on May 11, 2004 10:08 AM

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liberal says: “Katherine Harris to disenfranchise large numbers of blacks”

I’ve heard that charge, but I haven’t seen convincing evidence. But in any case that is a voter fraud issue, not a policy issue. Playing the same game the Republicans accused the Democrats of disenfranchising military people filing absentee ballots. Again I have not seen convincing evidence of that either. But we do know there was massive voter fraud in the 1960 election to the benefit of candidate Kennedy. If you trust author Seymour Hersh, you can read the details in his “Dark Side of Camelot.” I’ve never heard Democrats complain about that kind of disenfranchisement.

We have a far greater distortion of the principles of democracy with our federal system that gives Wyoming (the least populous state) the same number of senators as California. We have this unequal representation for historical reasons; we could correct it. We have undercounts in our census; we might be able to correct it. We have always had undercounts, and modern day undercounts are smaller that in the past. The Democrats were hoping to make gains with the 2000 census and they failed. The Democrats also did not mind fleeing Texas for a while to frustrate redistricting.

We are dealing with politicians (both parties) who want power, not truth. Sometimes by sheer coincidence, the two momentarily align. That was my point.


Posted by: A. Zarkov on May 11, 2004 10:14 AM

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A. Zarkov writes, "True, the court was being very political in trying to undo the New Deal."

If "very political" means "ruling that blatantly unconstitutional legislation was unconstitutional," then I agree.

Case in point: federal legislation setting a federal minimum wage. Was it unconstitutional?

Of course it was! EVERYONE knew the federal minimum wage legislation was unconstitutional. Even FDR (the miserable scumbag), knew it was unconstitutional. H@ll, he thought its unconstitutionality was a big joke!

http://www.dol.gov/asp/programs/history/flsa1938.htm

"When he felt the time was ripe, President Roosevelt asked Secretary of Labor Perkins, 'What happened to that nice unconstitutional bill you had tucked away?'"

More from our wonderful (unconstitutional) Department of Labor:

"In light of the social legislation of 1978, Americans today may be astonished that a law with such moderate standards could have been thought so revolutionary."

I guess back then they weren't used to having the Constitution treated as a meaningless piece of toilet paper.

Posted by: Mark Bahner on May 11, 2004 02:32 PM

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Steady Eddie. I wrote “rarely” as opposed to “never.” Yes the Supreme Court voided legislation before the era of the New Deal. But do you really think that the court voided more (or as many) legislative acts in the 70 years before the New Deal than in the 70 years since? We would need to do a careful statistical study to truly settle this question. Nevertheless, I don’t think we need to because the court has far more ammunition to shoot down legislation since the New Deal than it did before. Duncan v. Louisiana (1968) expanded the “doctrine of incorporation” which makes the protections of the Bill of Rights to applicable to the states. Yes the court began to “incorporate” as far back as the early 20th century, but it has really been applied with increasing frequency since the New Deal.

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--No, Democrats wanted sampling because it would accurately measure the population in states like New York.--

No. Democrats wanted sampling because it would accurately measure the population in states like New York *and* because it would increase the number of Democrats in the House of Representatives.

:-)

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Quod erat demonstrandum (QED) - Which was to be shown or demonstrated

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