A Few More Thoughts on the Voting Rights Act of 1965

We are at the end of August and this writer would like to express a few thoughts on the Voting Rights Act of 1965, which was signed into law 50 years ago this month.

The Voting Rights Act of 1965 is one of the most successful statues in American history. Congress passed the Act to enforce the Fifteenth Amendment’s command that voting cannot be denied to anyone on account of race or color. As a result of the Voting Rights Act, black Americans across the country have access to the polls. Black Americans across the country, especially in the South, have been elected to political office in much greater numbers since the Act was passed. Black Americas across the country witnessed — and greatly contributed to — the election of the current occupant of the White House.

While the Act has had success, there have been abuses.

The Voting Rights Act prohibits drawing election districts that would improperly dilute the voting power of black Americans. The term “cracking” describes dividing a black community among several voting districts, so even if blacks voted as a block, they would not be able to influence any election in most instances. The prohibition of improperly drawing districts is fitting and proper. Unfortunately, the politicians have reinterpreted this to mean that it is proper to affirmatively drawn districts in such a way to pack a sufficient number of blacks in the district to guarantee that a black wins the election.

This is bad policy, bad politics, and bad law.

The policy is bad because drawing black-dominated districts tends to attract politicians who can only get elected in such districts. It is worth noting that not one House member in the history of the Congressional Black Caucus has ever been elected to the Senate. This is because blacks who get elected in such districts have not developed the political skills to attract significant voter support from those who are not black.

It is bad politics because nearly all (if not all) of blacks who get elected to Congress vote for policies that are not helpful to blacks. For example, members vote in favor of the minimum wage, which makes young blacks less employable because they become too expensive to hire. Members vote against expanded school choice options (vouchers), which would help black parents send their children to better schools. And members support so-called comprehensive immigration reform, which is amnesty for those in the country illegally. If those who are in the country illegally — many of whom are low skilled — become legal, in many instances they will compete with black Americans for jobs in the general economy. These black Representatives routinely vote against the interests of black citizens.

This is bad law because nowhere in the Fifteenth Amendment does it say or imply that elected politicians need to be of a particular race. Blacks were guaranteed the vote, not office.

Congress amended The Voting Rights Act so that it now covers language minorities. Hispanics and other minority groups also complained about discrimination in voting. Turns out the fact that many voters, who had limited proficiency in English, equated having ballots and voting literature printed in English to literacy tests that prevented blacks from voting during the Jim Crow era. This comparison was pretty outrageous. Congress, however, amended the Act to prohibit English-only literature in “language minority” areas. The constitutional problem here is that the Fifteenth Amendment, which the Voting Rights Act enforces, prohibits denying the vote on account of race or color. Speaking only Spanish fluently is neither a race nor a color. Also, non-English speakers are immigrant populations. Americans are under no obligation to provide such accommodations to immigrants who voluntarily came to the United States. The Voting Rights Act is primarily for black Americans, who have been in this country since prior to its founding. The Africans who came here did not choose to come to the United States. And given the tragic history of the treatment of blacks, the country is under some obligation to see to it that black Americans get to exercise every right that comes with being an American. It is simply wrong to assert that “language minorities” have the same claim for such remedies.

When Congress passed Voting Rights Act, Section 5 was included. Section 5 was a temporary measure that gave the federal government oversight over “covered jurisdiction” that the Act identified. The jurisdictions were mostly in the South. The oversight mandated that any change to any election procedure had to be “pre-cleared” by the federal government. In 1965, this was necessary. Jurisdictions in the Deep South resisted civil rights for black Americans. Whenever a state would be sued because of a policy or procedure making it difficult for blacks to vote, the state would change the policy to some other impediment preventing blacks form voting. The Southern states would stay one step ahead of the law. The pre-clearance provision put an end to this practice. There was one problem though. Pre-clearance, on its face, was at odds with the Tenth Amendment’s guarantee that any function not specifically delegated to the federal government would be reserved for the states. Pre-clearance effectively placed the federal government in charge of running elections in the South, a function that would normally be reserved for the states. The Supreme Court approved pre-clearance in 1966, as a temporary measure (initially five years), so that the rest of the Voting Rights Act could do its work. In time, the authors of the Voting Rights Act understood, the resistance to civil rights would wane, pre-clearance would become unnecessary, and Congress would not vote to reauthorize Section 5 when that time came. In 2006, Congress reauthorized Section 5 for the fourth time; the Senate vote was a unanimous 98-0. President George W. Bush then signed it into law. That reauthorization, like the one before it, extended the pre-clearance requirement for 25 years. Forty-one years after the passage of the initial act, the Southern states were still not trusted to conduct its elections. It was pretty clear that the Congressional reauthorization process was a sham. Congress would never not reauthorize Section 5. Most members of Congress would not want the publicity of voting against Section 5 because it would be implied in the press as voting against the entirety of Voting Rights Act. Members of the media would make famous any prominent politician who voted against the reauthorization. In 2013, the Supreme Court ruled that Section 4 was unconstitutional. Section 4 determined which jurisdictions would be covered. Since the Court found the formula in Section 4 unconstitutional, Section 5 is now unenforceable.

The Reluctant Conservative believes that the underlying reason why Congress reauthorized Section 5 — and would continue to do so had the Court not stepped in — is because many Americans, particularly those on the Left, want the American South to continue to wear the stigma of racism. Section 5 is the South’s Scarlet Letter. While it is the case that, as with the rest of the country, there is racism in the South, it is also the case that it is no longer 1965. The South, like the rest of the country, has changed. Many in the country do not want to acknowledge this. And politicians in Washington, D.C., reflecting this sentiment, chose to misuse the Voting Rights Act of 1965 to, among other things, stigmatize their fellow citizens.

Birthright Citizenship and the Fourteenth Amendment

On the Washington Post’s online editorial page on August 18, 2015, there were opinion pieces with the following titles:

Birthright citizenship was one of the Republican Party’s greatest accomplishments. Now some Republicans want to end it.

 

Did Republicans just give away the 2016 election by raising birthright citizenship?

 

Donald Trump and Scott Walker want to repeal birthright citizenship. It’s nearly impossible.

 

The articles make the point that in order for those in the Republican Party to end automatic citizenship to children born to those in the United States illegally, the country must amend the Constitution.  Specifically, the writers claim, we would have to repeal a portion of the Fourteenth Amendment.

The country adopted the Fourteenth Amendment to address the various loose ends that remained unresolved as a result of the Civil War.  Among them were to invalidate any monetary claim due to the loss of a federally emancipated slave; the handling of any Confederate public official who had once, as federal public office holder, taken the oath to support the U.S. Constitution; and applying the Bill of Rights to the states.

The primary reason the U.S. adopted the Fourteenth Amendment was to settle the legal status of those who had been slaves.  Congress decided that those had been recently freed would be full citizens of the United States.

The following is the first sentence of the Fourteenth Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Without referring to the former slaves directly, those recently freed would become citizens simply because they were born on U.S. soil.

Most Americans have come to believe that as long as one is born in the United States, that individual is a citizen of the country.  This belief, however, is incorrect.

If the modern day Republican Party wanted to restrict who becomes a citizen by virtue of being born on U.S. soil, they are too late; Republicans in the 1860s, in the wake of the Civil War, beat them to it.

The often ignored phrase in the Fourteenth Amendment is the “and subject to the jurisdiction thereof” subclause.  There are two conditions to get birthright citizenship.  First, the person born must be born on U.S. soil.  Second, the person must be subject to the jurisdiction of United States.

The following is part of the first sentence of the Civil Rights Act of 1866.

. . . That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States

The wording in the 1866 Act is similar to the first sentence of the Fourteenth Amendment.  Republicans in Congress were concerned that a future Congress controlled by Democrats would repeal the Act.  This, in large part, was the reason to propose the amendment: to permanently enshrine it in the Constitution.

Subject to the jurisdiction thereof or subject to the jurisdiction of the United States means not subject to any foreign power; there cannot be any allegiance to any other country.  A newborn baby is not in any position to have any allegiance to any nation.  Allegiance, therefore, is determined by the legal status of the newborn’s parents and is imputed to the child.  If a foreign ambassador stationed in the U.S. has a child born on American soil, the citizenship of the child is the same as the citizenship of the ambassador.  Prior to a federal law passed in 1924, American Indians belonging to tribal nations were not citizens of this country even though most were born on American soil.

It is clear that Congress authored the Citizenship Clause of the Fourteenth Amendment in such a way to exclude classes of people from automatic birthright citizenship.  The intent was to include the former slaves, and blacks generally, under the umbrella of U.S. citizenship, which overturned the 1857 Dred Scott v. Sandford decision that said blacks — whether slave or free — could never be citizens of the United States.

There is no reason to believe that those born to foreigner, who would sneak into the country in violation of our laws, would be eligible to for birthright citizenship.  How is it possible for a citizen to be raised by someone living in hiding (or living in the shadows as amnesty sympathizers phrase it)?  Logically, it makes no sense that a citizen would be raised by parents who could legally be deported.  Those who enter the U.S. unlawfully are not subject to the jurisdiction of the United States.  Even if those who migrate to the U.S. illegally feel more loyalty to this country than to their own, allegiance is a two-way street.  The United States must also pledge allegiance to its citizens in order for the phrase subject to the jurisdiction thereof to have any meaning.  A young man cannot become a New York Yankee by simply jumping the fence during spring training and putting on a uniform; the team must extend an invitation to join.  Someone cannot join into marital union with another without at least implied consent of the other (think how many men would have claimed to be Marilyn Monroe’s husband during the 1950s).

Unfortunately, the practice has been to confer citizenship to anyone (other than children of foreign ambassadors) born on U.S. soil.  Most Americans, including public officials, unwittingly accept the notion that if one is born here, one is automatically a citizen.  This is applied to not only those born in the country illegally but even those here temporarily.  For example, a seven-months-pregnant Canadian woman visiting the U.S. for a weekend to go to a relative’s wedding in Vermont.  If she gives birth prematurely while here, her child is, unconstitutionally, considered to be a U.S. citizen.

This was not the purpose of the Fourteenth Amendment Citizenship Clause.

As a political matter, Republicans running for high office should explain to the public how this Citizenship Clause of the Fourteenth Amendment was supposed to work, even if some in their party disagree.  The clause is not intended to be unkind or ungenerous.  It is not intended to be anti-immigrant.  It is not intended to be anti-Hispanic.  Democrats claim the opposite because it benefits them electorally.

Republicans today cannot be timid.  The public will understand if responsible politicians articulate in plain language why the Citizenship Clause does not cover so-called “anchor babies” or babies born here unintentionally.  Republican politicians will have to perform this task because, unfortunately, we cannot rely on those in the media to expose this misuse of the Fourteenth Amendment.

Voting Rights Act of 1965 and the Fifteenth Amendment

The question of suffrage is one which is likely to agitate the public so long as a portion of the citizens of the nation are excluded from its privileges in any State. It seems to me very desirable that this question should be settled now, and I entertain the hope and express the desire that it may be by the ratification of the fifteenth article of amendment to the Constitution.

Ulysses S. Grant, First Inaugural, March 4, 1869

One week before President Grant gave his inaugural address, Congress proposed what would be the fifteenth article of amendment.  One year later, the states ratified it.

Section 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 of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XV

Grant enforced this amendment during his presidency.

After he left office, however, due to a political deal having to do with resolution of the close and controversial election of 1876, the federal government stopped the enforcement of the Fifteenth Amendment.  As a result, most black Americans, particularly those in the Southern states, could not exercise the right to vote for nearly a century.

It took the Civil Rights Movement that began in the mid-1950s to persuade the federal government to pass meaningful nationwide civil rights legislation.  First, there was the Civil Rights Act of 1964, and the following year, the Voting Rights Act of 1965.  The Voting Rights Act, signed into law on August 6, 1965, exists so that the federal government can enforce the Fifteenth Amendment, which the amendment explicitly authorizes Congress to do.

The Voting Rights Act banned states from using various devices (literacy tests, having to demonstrate educational achievement, etc.) to prevent citizens from voting.  The Act also had a temporary provision that prevented recalcitrant jurisdictions, mostly in the South, from making any changes to voting laws or procedures without the permission from the federal government.  This temporary provision is known as Section 5 of the Act; it took 48 years for the temporary provision to effectively expire and only due to a ruling by the United States Supreme Court.

Many in the legal community believe that the Voting Rights Act is one of the most effective civil rights laws in American history.  Black Americans have access to the polling place across the country.  It is also the case that Mississippi, which has a troubling history with regard to allowing blacks to vote, has the highest number of black elected officials in the nation.

However, as with any piece of legislation, there are public officials who are apt to use a law to further some other political goal.

Despite its apparent success, federal officials have on occasion misused the Voting Rights Act.  There are even provisions in the Act — amendments included after 1965 — that are completely unconnected to the Fifteenth Amendment.  There will be more on this in a future post.

On this fiftieth anniversary, we should celebrate the successes of the Voting Rights Act.  However, this would be a good time to carefully examine whether we are using this important piece of legislation in the way it was originally conceived.

Illegal Immigration: Bad Deal for America … and the Immigrant

The Congress shall have the Power . . . To provide for the calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel invasions

Article 1, Section 8, Clause 15

The immigration issue is getting plenty of attention this presidential election cycle.  This is not solely due to a certain New York billionaire businessman’s entry into the Republican Party’s nominating process.  This was an issue in the past two presidential elections.  Specifically, it is illegal immigration that is gotten the attention of politicians.  It has gotten their attention because many conservatives, who vote in Republican primaries, are unhappy that nothing has been done to address this problem.

Illegal immigration is an issue for one simple reason: Congress has not done its constitutional duty to repel invasions.

The federal government has a responsibility to defend the borders of the United States.  By not defending the borders, government has allowed foreigners to come into this country by the millions — for decades — in violation of our laws.  Today, those illegally in America are part of our economy, our communities, and, increasingly, part of our politics.

One of the political problems with illegal immigration is that most of those who are here illegally are Hispanic.  There is now a sizable portion of the voting public who descend from countries that are Spanish speaking.  The peoples of Cuba, Honduras, Mexico, Nicaragua, Puerto Rico, etc. do not view each other as their own, but in the United States, a pan-Hispanic identity has emerged: Hispanics in America (legal or illegally) view themselves, along their counterparts in Latin America, as a people.

Being a people representing about 15% of the U.S. population gives the group political power.  Those in the country who are citizens are able to vote.  Those who are not here lawfully have the sympathies of many Hispanics who are.  When Americans voice concern that the Southern border is not secure, or federal and state governments should limit financial assistance to citizens and legal residents, or that in-state tuition should only benefit those in the country legally, many Hispanics here lawfully feel that their people are being targeted.  Many feel that their people are unwelcome.  And many feel their people are victims of racial animus.  This feeling of victimhood often manifests itself in the voting booth and helps the Democratic Party, which has become the party that nurtures and exploits racial and ethnic victimhood.

The charge that the United States is in any way hostile to Spanish-speaking people is a curious one given that Cuban refugees have been welcomed in the country for decades.  Also, the people of Puerto Rico are not simply welcome; they are citizens of the United States and have been for a century.

This logic has not stopped people in this country from charging that those who oppose illegal immigration are, at least in part, motivated by racial animus against Spanish-speaking people.

Just as there is no inherent right for an individual to attend Harvard Business School, there is no inherent right to immigrate to this country.  And just as the HBS admissions committee decides which applicants to accept, the people of this country should have some say regarding who gets to come into the country.  It is indeed true that many current citizens descend from those who were immigrants.  Those immigrants, however, came to this land without breaking the law.  It is also the case that the need for immigration at various times during our history does not mean that need exists today.

The Reluctant Conservative is of the opinion that the immigration policy of the United States should benefit the people of the United States.  Many of the people who illegally come to the U.S. from Mexico, Nicaragua, El Salvador, etc. are low-skilled.  Those low-skilled individuals provide inexpensive labor to legal residents and businesses in certain sectors of our economy.  If those here illegally are, through government action, legalized, they will move into the general economy competing for jobs held by low-skilled native-born Americans.  Importing such people into the country is an immigration policy that does not benefit the people of the United States.

In many instances, however, such a policy has not been beneficial to those illegally crossing the border.

There is human trafficking in the United States.  Hundreds of thousands who cross the border are at the mercy of human smugglers.  Many can be subject to physical and sexual abuse.  Often those being smuggled are indebted to the traffickers who brought them into the country and are denied their freedom until the debt is paid off.  Such debts are difficult to settle with the low wages the migrants are paid, if they are paid at all.

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.

Amendment XIII, Section 1

We cannot turn a blind eye to the trafficking that is taking place in this country, even if it means paying more for goods at the local grocery store.  The federal government has a duty to do more to prevent it.  The country paid a huge price in spilt blood between 1861 and 1865 to end this kind of human exploitation.  There may be little Americans can do about the existence of slavery in other countries, but we all should be able to agree that we will not have it here.