- Published Date
- Written by Roger Clegg
It’s being widely noted that this week, on July 2, we’ll be celebrating the fiftieth anniversary of the signing of the 1964 Civil Rights Act. Below are excerpts from my discussion, posted earlier this month on the Liberty Forum website, of why “the approach taken in the bill was a conservative one, that it ought to be updated to strengthen and clarify that essentially conservative approach, and that it is the Left that has strayed from the Act’s principles and that now wants to repudiate them.”
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The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well.
There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of voting data), IX (facilitating intervention by the Justice Department and federal jurisdiction in some trials), X (establishing the Community Relations Service), and XI (regarding criminal contempt).
A Restricted Measure
The 1964 Civil Rights Act was ambitious, but it was not untethered, either in the areas it covered or in the kinds of discrimination it banned. It did not, to give just one example, require wedding cakes and photographs to be made for same-sex marriages. And the relief that it made available was carefully limited, too. There was no provision for the award of comprehensive, let alone punitive, damages in the original statute, for example.
Some libertarians might still object to this bill. But no less a libertarian than Richard Epstein said that, if he had to make an up-or-down decision, he would have voted for it in 1964. The Act addressed both public and private discrimination; and, in some areas regulated by the Act (for example, public accommodations) public and private discrimination had become hopelessly intertwined.
Conservatives, of course, treasure Richard Epstein but they adore Edmund Burke, so the more salient question for them is whether Burke would have voted for the Act. I think he would have. The Act was certainly a reform, but then Burke was a reformer, and these reforms were actually in line with fundamental American precepts – with the “American creed,” as Gunnar Myrdal put it, and E pluribus unum, our original motto. The rhetoric of the Civil Rights Movement, it is often now forgotten, stressed patriotism and was unabashedly religious; it is not surprising that it is now conservatives who are most likely to quote Dr. Martin Luther King’s dream of children being judged by the content of their character rather than the color of their skin, emphasizing both the “character” part and the “color” part. This spirit is in the Act, even if some liberty is sacrificed to it.
Conservatives want society to be cohesive, and it is hard for a multiracial and multiethnic society to be cohesive if it is endorses irrational and unfair discrimination on the basis of skin color and national origin. Such a society cannot be meritocratic or honor a natural aristocracy, let alone the self-evident truth that all men are created equal.
A higher percentage of Republicans than Democrats in both houses voted for the 1964 Civil Rights Act. Yes, in some respects the Act diminished the freedom of companies, but it’s at least arguable that the Act actually made markets freer and more efficient and improved the environment for business. I’ll conclude this discussion on a point related to this, noting that when I went from being a deputy in the Justice Department’s civil rights division to being a deputy in its environment and natural resources division, I was immediately struck by how much shorter and clearer the statutes were for the former than the latter. A low bar, but still.
The Turn to Federally Sponsored Race Discrimination
It is astonishing, in light of all the Act achieved, that the federal government has at the Left’s bidding since 1964 come to endorse a great deal of racial discrimination. A 2011 report by the Congressional Research Service catalogued literally hundreds of government programs that included some form of racial discrimination.
If Congress wants to do something about it, and drastically reduce the amount of discrimination that goes on, it should look carefully at the bills that the Center for Equal Opportunity and the Heritage Foundation recently drafted. (The bills are described in detail here.)
The most straightforward way Congress could act is by banning racial preferences in all federally funded programs — public employment, education, contracting, etc. — and in federal civil-rights protections. Federal law — including the words of the 1964 Civil Rights Act that courts and bureaucrats have mangled — frequently states that the government may not discriminate based on race, but plenty of other federal statutes explicitly do so.
Likewise, the “disparate impact” approach to civil-rights enforcement results in race-based preferential treatment — often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences, and our second model bill has this aim.
In brief, an action that has racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers); or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color; or both. The Obama administration loves this approach, alas.
Fortunately, most civil-rights laws – again, including the 1964 Civil Rights Act, as originally written – have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws were expanded, however, through agency interpretation and activist court rulings to include “disparate impact.” Again, the Left sacrificed the Act’s guarantee of equal opportunity in order to achieve equal results instead.
Bell Curve Consequences
And finally — having addressed conservatives, libertarians, and liberals — let me also say a word to those who ask: What if it turns out that there are genetic differences in cognitive abilities among different groups?
The issue whether there are racial differences in IQ is, it seems to me, of an intricacy disproportionate to its interest, at least for those of us who think that sound law and policy require judging people as individuals, without regard to race. In short, even if such genetic differences can be proven to exist, it would not provide a convincing rationale to refrain from re-instilling the sound law and policy of requiring citizens to be judged as individuals, without regard to race. Were science to prove somehow that the average white’s IQ is 12.03 higher than the average black’s, there will still be plenty of blacks smarter than plenty of whites, and plenty of mixed blacks/whites/others.
In the civil-rights context, the science here is important only to those on the far Right who would defend racial discrimination, and — especially — those on the far Left who insist that, since culture of course also cannot be blamed for racial disparities, they must all be a result of discrimination. The quota mongers have to deny unequal distributions of talent, interests, and ability, since their whole approach hinges on an assumption that proportionate representation is what a meritocratic system, sans discrimination, would produce. It is only to people who want to make racial generalizations and to people who believe that, absent discrimination, every university and workplace would “look like America” that race and IQ is of great importance.
I, on the other hand, am happy to be agnostic: Just choose the best qualified people, and don’t worry about getting your numbers right. For us colorblind conservatives, who think people should be treated as individuals regardless of race and who don’t think that racial disparity equals racial discrimination, the connection between race and IQ doesn’t matter in this arena. The 1964 Civil Rights Act, as originally written and understood, makes sense for a multiracial and multiethnic society, whether or not there are genetic differences among different groups.
Discrimination on the basis of race and ethnicity is inconsistent with the 1964 Civil Rights Act, unconstitutional when the government imposes it, and a bad idea, yet the practice is now rife throughout federal law and government programs. Jobs should go to the most qualified individuals; contracts should be awarded to the lowest bidders who are qualified; the students who are most likely to excel academically should be admitted to taxpayer-funded universities; and all should be protected equally from discrimination.
- Published Date
- Written by Roger Clegg
Here’s a column by me recently posted on National Review Online:
Looking forward to her run for president in 2016 and in an effort to bolster her bona fides with key parts of the Democratic base, Hillary Clinton gave a speech earlier last week on voting rights. In it she made two points, both wrong.
Her first claim was that the Supreme Court erred in its ruling in Shelby County v. Holder, in which it struck down the coverage formula that is used for Section 5 of the Voting Rights Act. That formula is used to determine which state and local jurisdictions have to go through the extraordinary and constitutionally dubious process of getting advance approval from the federal government whenever they make any change in a voting-related practice or procedure.
The principal use of Section 5 has been to mandate racially gerrymandered and segregated voting districts, which is hardly a noble end, and indeed is flatly inconsistent with the ideals of the Civil Rights Movement. And the formula is based on data from elections in the Sixties and early Seventies, with Congress refusing to update it when it reauthorized Section 5 in 2006 (had it done so, no state except perhaps Hawaii (!) would have been covered). Congress, moreover, was warned by the Court in 2009 about the problems with its approach, and did nothing about it. The Court’s decision, then, was perfectly reasonable.
Mrs. Clinton’s second claim was that voter-ID laws will, as a result of the Court’s action, be adopted by states, and that the antifraud justification for these laws is phony and the real motivation is to keep racial minorities and others from voting. This claim is unpersuasive for a number of reasons.
To begin with, voter fraud is hardly a chimera, as John Fund and Hans von Spakovsky, among others, have persuasively documented and as the Supreme Court has recognized in upholding a voter-ID law. The lead opinion in that decision, by the way, was written by a liberal justice, John Paul Stevens, who — being from Chicago — knew that there actually is such a thing as voter fraud.
What’s more, if a state did pass or apply a voter-ID law with racial intent, there are plenty of other provisions in the Voting Rights Act that can be used to prevent such discrimination — provided, of course, the discrimination can actually be proved, in the same way that any other claim of racial discrimination (in employment, housing, etc.) must be proved. For example, a recently enacted law in North Carolina is being challenged; I doubt that the challenge is meritorious, but the point is that nothing in the Supreme Court’s Shelby County decision will prevent justice from being done there, or in Texas, or anywhere else.
This month will mark the 50th anniversary of the 1963 March on Washington that culminated in Martin Luther King, Jr.’s “I Have a Dream” speech. When one observes the gap between today’s racial rhetoric and our racial reality in 2013, it’s hard to know whether to laugh or cry.
Secretary Clinton’s speech is typical of the rhetoric we are hearing and which will build to crescendo later this month, with a refusal to let go of the race card, whether the context is alleged racial profiling, criminal sentencing, home loans, criminal background checks by employers, school discipline, or voting rights.
The reality is quite different. Racism (among all racial groups, by the way) can still be found and always will be, but it is nothing like it was in 1863 or 1963, and indeed it is legally proscribed in practically any public transaction, as well as being socially unacceptable. Opportunities are boundless for all, regardless of skin color, in any walk of life. Just ask our president. It’s not just that the glass is half full: Our cup runneth over.
Sad to say, the principal reason for the remaining racial disparities — and, consequently, for the racism that still exists — is the implosion of the black family. The resulting “tangle of pathology” was identified by Daniel Patrick Moynihan just two years after Dr. King spoke and when it was less virulent; believing that working and studying hard is “acting white” would have insulted Dr. King; I doubt he would have thought much of gangsta culture and its liberal enablers either, since he expected his children to be “judged by the content of their character.” It would be nice if Hillary Clinton gave a speech about all that, but I’m not holding my breath.
- Published Date
- Written by Roger Clegg
The Supreme Court granted review this month in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act. The Center for Equal Opportunity helped write and joined an amicus brief urging the Court to take the case.
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- Written by CEO Staff
Why should felons not be allowed to vote?
Because you don’t have a right to make the laws if you aren’t willing to follow them yourself. To participate in self-government, you must be willing to accept the rule of law. We don’t let everyone vote--not children, not noncitizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, loyalty, and responsibility, and those who have committed serious crimes against their fellow citizens don’t meet those standards.
Shouldn’t some felons be allowed to vote?
Yes, and some shouldn’t. The decision to restore the right to vote should not be made automatically. It should be made carefully, on a case-by-case basis, weighing the seriousness of the crime, how long ago it was committed, and whether there is a pattern of crime.
- Published Date
- Written by Roger Clegg
Usually my weekly emails to you are my own writing, but this week I'm going to send you an excellent column by Perry Pendley, head of the Mountain States Legal Foundation. And I think I have three good reasons for doing so. First, as I said, it's an excellent column, and it's even better because it draws on the fine work done by the Center for Equal Opportunity's chairman Linda Chavez, who has told Congress repeatedly that it should get rid of its offensive requirement that ballots be printed in foreign languages. Second, Mr. Pendley and his organization are longtime allies of the Center for Equal Opportunity, and we are delighted to be making common cause with him again on this issue. And, third, I've been on the road the last couple of weeks, speaking at several law schools and other venues, and relying of Perry here will make that week a little less hectic. Enjoy!
CENSUS BUREAU RUSHES UNCONSTITUTIONAL BALLOT DEMAND
In mid-October, the Obama Administration, through the U.S. Census Bureau, put three states and 248 counties in 25 states on notice that the election materials they provide must be printed, not only in English, but also in 68 additional languages. The mandate is not new—its announcement is required upon completion of the decennial census; however, what is new is the speed with which it was issued after the 2010 Census. The Bush Administration published its Federal Register notice regarding the 2000 Census in 2002.
Cynics may suggest that the announcement has something to do with the 2012 elections, but the focus should be on the remarkable requirement that, in a country where English language fluency is necessary for citizenship, ballots must be in a variety of foreign languages and the insult that demand gives to the Constitution, as well as its public policy failings, including, that it: imposes a costly unfunded federal mandate in the middle of a recession; Balkanizes the body politic; and contributes to voting fraud. Little wonder that, with the Census Bureau’s announcement, many are asking, “Why are we doing this?”
In 1975, Congress amended the Voting Rights Act of 1965 to require that ballots be prepared in languages other than English in jurisdictions where more than 5 percent of the voting-age citizens are members of a particular language minority, if their illiteracy rate is higher than the national illiteracy rate. The reason: “unequal educational opportunities which language minorities have suffered at the hands of State and local officials.” Although the Congressional Record references “evidence,” it cites only statements by three Representatives who supported the amendment. Enacted as “temporary,” Section 203 was extended: in 1982 for 10 years, in 1992 for 15 years, and in 2006 for 25 years.
Even if Section 203’s “evidence” were true in 1975, which is doubtful, Congress may not interfere constitutionally with the right of State and local officials to conduct elections by imposing a prophylactic remedy—non-English ballots—unless it has evidence of discrimination and enacts a remedy that is “congruent and proportional,” in the words of the U.S. Supreme Court, to the offense. Because “disparity” does not mean “discrimination,” let alone the intentional discrimination by State and local officials that allows extra-constitutional action by Congress, Section 203 is unconstitutional, if not in 1975, then certainly in 2011, given Congress’s rote reauthorization of the provision over the decades.
Experts such as Center for Equal Opportunity Chairman Linda Chavez argue that, even in 1975, lack of English language fluency was likely not the result of discrimination but factors such as growing up in a home where English is not spoken enough. Furthermore, how likely is it that the English language deficiencies Congress “found” in 1975 exist four decades later? If not likely, why are hundreds of jurisdictions still covered? Because the Census Bureau labels those who say they speak English “Well” (as opposed to “Very Well”) with those who say “Not Well” or “Not at All” as having “Limited English Proficiency” (LEP) and covered by Section 203.
That citizens do not need non-English ballots was demonstrated by a 1986 General Accounting Office (GAO) study, which found that over half of the reporting jurisdictions said no one used the bilingual materials. In 1996, a Yuba County (California) official reported that, in 16 years, only one person requested bilingual materials, yet the county spent $30,000 a year preparing them. In May 2011, Cuyahoga County (Ohio) spent $100,000 for bilingual ballots in a “light” primary season. Bilingual ballots create another concern for election officials: their ability to prevent fraud. As Ms. Chavez puts it, the only people who need bilingual ballots are non-citizens who want to vote.
Sadly, this costly, useless federal mandate, which undermines national unity, facilitates voting fraud, and violates the Constitution, is likely with us forever. That is, unless a courageous election official asks the Supreme Court to strike it down.
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- Written by Roger Clegg
This little essay is about voting rights, but let’s start with a “National Population” chart from the 2010 Census website.
The chart shows that America is more and more a multiracial and multiethnic country. Over one in four Americans now say they are something other than simply “white.” Blacks are no longer the largest minority group; Latinos are.
- Published Date
- Written by Roger Clegg
The Heritage Foundation has just published a paper that I co-wrote on legislative efforts to re-enfranchise felons. In this email, I’ve excerpted the second part of the paper (along with the paper’s “Abstract”). This part of the paper argues that automatic re-enfranchisement of felons is unwise as a matter of policy.
But the paper begins by demonstrating in lawyerly detail that, whatever you think as a matter of policy, the Constitution clearly commits this issue to the states. So it is disturbing that Sen. Rand Paul, for example, who claims to be a great champion of the Constitution and its limitations on federal power, is once again pushing a federal bill along with Sen. Harry Reid in this area; the first part of our paper addresses that bill in particular and its blatant unconstitutionality.
Both the original Constitution and the Fourteenth Amendment specifically delegate to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections. The American people and their freely elected state representatives must make their own decisions in their own states about when felons should have their civil rights restored, including the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate among felons. Any legislation passed by Congress taking away that power is both unconstitutional and unwise public policy.
Policy Arguments in Favor of Felon Disenfranchisement
Those who are not willing to follow the law cannot claim a right to make the law for everyone else. And when an individual votes, he or she is indeed either making the law—either directly in a ballot initiative or referendum or indirectly by choosing lawmakers—or deciding who will enforce the law by choosing local prosecutors, sheriffs, and judges.
Not everyone in the United States may vote: Thus, children, noncitizens, and those who are adjudicated to be mentally incompetent are not allowed to vote. This nation maintains certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws for those who are allowed to participate in the solemn enterprise of self-government. It is not unreasonable to suppose that those who, regardless of their race, have committed serious crimes against their fellow citizens may also be presumed to lack this responsibility, trustworthiness, and commitment to America’s laws.
Is it too much to demand that those who would make the laws for others—who would participate in self-government—be willing to follow those laws themselves? …
Thus, even if Congress had the constitutional authority to pass this legislation, there are sound public policy reasons why it should not do so. …
Answering the Policy Arguments Against Felon Disenfranchisement
The policy arguments in favor of automatically restoring the rights of all felons to vote are unpersuasive.
“We let everyone else vote.” Again, this is simply not true. America also denies the vote to children, noncitizens, and the mentally incompetent because they, like felons, fail to meet the objective, minimal standards of responsibility, trustworthiness, and commitment to our laws that we require of those who want to participate in the government not only of themselves, but also of their fellow Americans.
“Once released from prison, a felon has paid his debt to society and is entitled to the full rights of citizenship.” This rationale would apply only to felons who are no longer in prison, of course, and might not apply with respect to felons on parole or probation, but even for these “former” felons, the argument is not persuasive. While serving a sentence discharges a felon’s “debt to society” in the sense that his basic right to live in society is restored, serving a sentence does not require society to forget what he has done or bar society from making reasonable judgments based on his past crimes.
For example, as noted, federal law prohibits felons from possessing firearms or serving on juries, which does not seem unreasonable. In fact, as also previously noted, there is a whole range of “civil disabilities” (known as collateral consequences) for felons after their release from prison that apply as a result of federal and state law, listed in a 144-page binder (plus two appendices) published by the U.S. Justice Department’s Office of the Pardon Attorney. Society is not required—nor should it be required—to ignore someone’s criminal record once he gets out of prison.
“These laws have a disproportionate racial impact.” Undoubtedly, the reason that there is heightened interest in this subject is that a large percentage of felons are African Americans, although in absolute numbers, more whites are affected by felon disenfranchisement than blacks. That is because whites represent a majority of the individuals in state and federal prisons, according to the U.S. Justice Department, and have held that majority since Justice began keeping such records in 1926.
The racial impact of these laws is irrelevant as a constitutional matter. It should also be irrelevant as a matter of policy. Legislators should determine, based on non-racial considerations, what the qualifications or disqualifications for voting are and then let the chips fall where they may. In The Souls of Black Folk, W.E.B. Du Bois wrote: “Draw lines of crime, of incompetency, of vice, as tightly and uncompromisingly as you will, for these things must be proscribed; but a color-line not only does not accomplish this purpose, but thwarts it.” As a federal court said in an unsuccessful lawsuit against Florida’s felon voting law:
[Black ex-felons had] not been denied the right to vote because of an immutable characteristic but because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment.
The fact that these statutes disproportionately disenfranchise men and young people is not cited as a reason for changing them—as “sexist” or “ageist”—nor does it matter that some racial or ethnic groups may be more affected than others. That criminals are “overrepresented” in some groups at some point in time and “underrepresented” in others is no reason to change the laws. This will probably always be the case, with the groups changing over time and with the country’s demography. If large numbers of young people, black people, or males are committing crimes, then our efforts should be focused on solving those problems.
The answer to that problem is not to increase the political power of criminals.
Much has been made of the high percentage of criminals—and, thus, disenfranchised people—in some communities, but the fact that the effects of disenfranchisement may be concentrated in particular neighborhoods is actually an argument in the laws’ favor. If these laws did not exist, there would be a real danger of creating an anti–law enforcement voting bloc in local municipal elections, for example, which is hardly in the interests of a neighborhood’s law-abiding citizens who are victimized by such felons.
Indeed, the people whose votes will be diluted the most if criminals are allowed to vote will be law-abiding people in high-crime areas—people who are themselves often disproportionately poor and minority. Liberal civil-rights groups lobbying against felon disenfranchisement seem to have less concern for those victims.
“We should welcome felons back into the community.” Because the racial and other arguments are so unpersuasive, it is more and more frequently argued that re-enfranchising felons is a good way to reintegrate them into society. Attorney General Eric Holder has even claimed that felon disenfranchisement laws promote recidivism. As former Attorney General Michael Mukasey has pointed out, however, that claim, which derives from a study in Florida, is flawed:
Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.
Reintegration of felons into the community is an important goal, and this paper recognizes that restoration of voting rights can be a part of that process. Conversely, it is also important not to suggest to felons that it is hopeless for them to want to rejoin that community.
But restoration of voting rights should be done carefully and on a case-by-case basis once the felon can establish in fact that he has turned over a new leaf. When that has been shown, then holding a ceremony—rather like a naturalization ceremony—in which the felon’s voting rights are fully restored would be moving and meaningful. Restoration, however, should not be automatic, because the change of heart cannot be presumed. After all, the unfortunate truth is that most people who walk out of prison will be walking back in eventually.
Automatic felon re-enfranchisement sends a bad message: It says that Americans do not consider criminal behavior so serious that the right to vote should be denied because of it. Not allowing criminals to vote is also a form of punishment and a method of stigmatization that tells criminals that committing a serious crime puts them outside the circle of responsible citizens. Being readmitted to the circle should not be automatic.
While it is true that a disproportionate number of African Americans are being disenfranchised for committing serious crimes, their victims also are disproportionately black. The logical focus of an organization like the NAACP should be on discouraging the commission of such crimes rather than minimizing their consequences.
Congress does not have the power to force states to allow felons to vote in federal elections. The Constitution, including the Fourteenth Amendment, specifically delegates to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections.
Thus, the American people and their freely elected state representatives must make their own decisions in their own states on when felons should have their civil rights restored. This includes the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate found among felons. Any legislation passed by Congress to take away that power is both unconstitutional and unwise public policy.
- Published Date
- Written by Roger Clegg
Last week, federal district court judge John Bates issued a decision in Shelby County v. Holder upholding the constitutionality of Section 5 of the Voting Rights Act, which requires some jurisdictions (mostly but not exclusively in the South) to get permission from the federal government before making any change, no matter how trivial, in practices and procedures related to voting.
This was disappointing but not surprising. It would take a very brave federal judge to stick to rule-of-law principles and find Section 5 unconstitutional. Such action would bring a torrent of hysterical wrath from the media and the professional grievance industry that makes up much of the civil-rights community these days.