Rethinking Civil Rights as Property Rights

My latest over at Rare is an attempt to couch the importance of race-conscious policing within a libertarian framework:

As we’ve seen over the years, property rights, even more than tax rates, are more important to the development of markets and growing economies. Simply, if a nation-state wants investment—of both capital and effort—people who make those investments must have a reasonable belief that a return on that investment is possible in a successful venture. A state with shaky property rights—whether expropriated by the state, such as Venezuela, or seized and distributed to the kleptocratic oligarchy, like Russia—is much less likely to draw foreign capital because property can be seized at the whim of the elites. Places where investments are protected by the rule of law, on the other hand, attract capital because investments are protected from state-sanctioned theft.

Civil rights are really no different.

If civil rights protections are widely denied, particularly to one group of people, because they are routinely ignored and capriciously violated by police officers, those rights lose all tangible meaning to that population. Mistreatment by authorities—whether official policies like Stop and Frisk, or tolerance of police brutality, corruption, or homicide—corrodes the integrity of a community. The government loses credibility by effectively nullifying its own authority by arbitrary enforcement of laws (government powers) and the protections for citizens (civil rights).

Read the whole thing here.

bellum medicamenti delenda est

Jeff Toobin's History: Scarcely Related to Reality

Jeffery Toobin’s new piece on Justice Clarence Thomas and his wife Ginni leaves one wanting. I was waiting for a “gotcha” moment or perhaps a revelation about the couple that I hadn’t previously known or, at least, anything of interest that would warrant a few thousand words in the New Yorker.

[sad trombone]

Instead, what I read was a bunch of intimation about the Thomases traveling in conservative social circles, the revelation that Justice Thomas is an originalist (!!!), and a smattering of information about his life on the High Court.

One could have gotten as much useful information off of the justice’s Wiki page.

But what got me about the article wasn’t its complete lack of substance—an appalling lack, though it was, given the outlet and the author’s credentials as an astute Court watcher—but its blatant whitewashing of 14^th Amendment history. Toobin writes:

In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control.* In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.) *emphasis mine

I don't want to get into the campaign finance argument, but the gun rights comment was just too patently ignorant to let go.

Apparently looking to emulate his CNN colleague Wolf Blitzer and become the witless wonder of legal journalism, Toobin exhibits no respect for the substance of either the Heller or McDonald amicus briefs or decisions. Beyond that, Toobin should have a reasonable enough grasp of history—and by reasonable, I mean a basic, non-sanitized history understood by grown-ups—to be familiar with the stripping of blacks' legal protections that came in the post-Reconstruction era and continued up through the Civil Rights Movement of the 1960s. When marauding bands of hooded murderers ride the nights on horseback, the ability to protect one's family from them is very much a civil right—and the systematic removal of those rights doesn't require a special “angle” of jurisprudence to understand. 

UCLA law professor Adam Winkler penned a piece for the September issue of the Atlantic called “The Secret History of Guns.” Professor Winkler spent nearly 2400 words (of roughly 4700) detailing the explicitly race-based nature of various gun control actions—from Andrew Johnson unsuccessfully vetoing the gun rights of Freedmen (the legislative precursors to the 14^th Amendment) to then-Governor Ronald Reagan capitalizing on the spectre of armed Black Panthers at the California capitol. A snippet:

Indisputably, for much of American history, gun-control measures, like many other laws, were used to oppress African Americans. The South had long prohibited blacks, both slave and free, from owning guns. In the North, however, at the end of the Civil War, the Union army allowed soldiers of any color to take home their rifles. Even blacks who hadn’t served could buy guns in the North, amid the glut of firearms produced for the war. President Lincoln had promised a “new birth of freedom,” but many blacks knew that white Southerners were not going to go along easily with such a vision. As one freedman in Louisiana recalled, “I would say to every colored soldier, ‘Bring your gun home.’”

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn’t do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had “seized every gun and pistol found in the hands of the (so called) freedmen” in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

In response to the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen’s constitutional rights, including their right to possess guns. General Daniel E. Sickles, the commanding Union officer enforcing Reconstruction in South Carolina, ordered in January 1866 that “the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” When South Carolinians ignored Sickles’s order and others like it, Congress passed the Freedmen’s Bureau Act of July 1866, which assured ex-slaves the “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.”

That same year, Congress passed the nation’s first Civil Rights Act, which defined the freedmen as United States citizens and made it a federal offense to deprive them of their rights on the basis of race. Senator James Nye, a supporter of both laws, told his colleagues that the freedmen now had an “equal right to protection, and to keep and bear arms for self-defense.” President Andrew Johnson vetoed both laws. Congress overrode the vetoes and eventually made Johnson the first president to be impeached.

Fittingly, as DC readies itself to officially open the memorial to America's most beloved and famously peaceful civil rights leader, Winkler goes on to note that Martin Luther King Jr. applied for—and was denied—a concealed carry permit for a handgun after his home was bombed.

Apparently Dr. King also subscribed to this “extreme” and peculiar “angle” of civil rights.

It's not that I think Toobin wrote this as a hit piece. (It was, if anything, a miss piece.) But by writing this as he did, he mischaracterized an important and well-documented aspect of traditional civil rights in America that—at the very least—any responsible Court watcher would instantly recognize from recent cases, whether or not he agreed with the policy outcomes. Toobin goes further to imply Thomas relies on a revisionist history that is perceived through his putatively unorthodox originalism and colored by his race. That is simply bullshit. 

Gun rights and self-defense have gone hand-in-hand with civil rights for blacks since the very first Civil Rights Act in our nation's history. It seems Mr. Toobin is the one with a questionable understanding of traditional American civil rights. 

bellum medicamenti delenda est

A Modest Proposal Compromise

There is a growing concern that the benefits of citizenship are too broadly given to undesirables children born in this country of non-citizen parents. Further, there is another concern that those who are accused of taking-up arms against their country, or aiding those who do, should have their citizenship revoked without trial or proof of treasonable acts. To address both of these issues, may I suggest a compromise: combine the two, and make them retroactive to 1860. After all, this is a matter of national security and one cannot be too careful.

As you may recall, beginning in 1860, millions of Americans renounced their citizenship and took up arms against their former country. Their deeds, through direct confrontation or diseases brought on by wartime conditions, ended up in the deaths of over 300,000 loyal Americans--100 times the number killed on September 11, 2001. By the logic outlined above, that treason should be recognized and all the descendants of those who took up arms, aided their traitorous comrades, or participated in the government of the insurrectionists should have their citizenship revoked as they are progeny of traitors. They owe their heretofore recognized citizenship to the birthright. That is, of course, unacceptable.

These descendants often still fly the flag of treason and commemorate their forebears' disloyalty in numerous ways. Thus, the combined legislation should include the confiscation and destruction of all property bearing the treasonous flag, including but not exclusive to real estate, monuments, clothing, transportation, and music--so we can once and for all rid the nation of "Freebird."


This may be problematic for many so-called Americans. As we cannot let the fact that perhaps 12 million workers are here in the United States illegally dissuade us from deportations and other law enforcement efforts, millions of descendants of those who would tear apart our nation should get no different treatment. The American birthright to citizenship has allowed children of murderous traitors to grow up around us. Thus, for those white people individuals under reasonable suspicion of traitorous descent, documentation of legal immigration and/or non-traitorous bloodline shall be required by law enforcement officers. (All current law enforcement and other government employees will have to provide this paperwork to remain gainfully employed by the state.)

We are not savages, so let us make sure that all the illegal traitor descendants may apply for citizenship through the proper legal channels. They may start at the back of the line, just like every other non-citizen who wants to be an American. That they're here illegally and contributing to society is not a valid excuse for skirting the law. The law is the law, and it's not fair to all those who have waited for years to come here legally, that some simply being present is enough to grant immunity. It's not like we told their great-great grandfathers to take up arms against their own country.

Slave descendants whose lineage can be traced to slaveholders predating emancipation, of course, would be exempted. Questionable cases and all other challenges will go through the newly formed Bureau of American Integrity, which will be overseen by a non-partisan board made up of genealogists, Native American chiefs, and angry black studies professors.


Some may complain that these measures are too harsh and unconstitutional. To them, I say, everything changed on April 12, 1861.

SCOTUS Nod: An Exercise in Benevolent Bigotry

Pop quiz:

Which of the following are legitimate qualifications for a position on the Supreme Court:

a) a born-into tan
b) a cool "ethnic" last name
c) boobs/who-ha
d) legal acumen
e) all of the above, with special emphasis on a, b, and c

While put so crudely as to garner disgust from the Left, any astute non-comatose observer of the nomination process leading up to today's announcement can say, without reservation, the answer the Obama administration would give is "e." As proud as I was of my country for electing a black man--among a field of white men (and woman)--to be POTUS, I am disgusted by the manner with which the administration made its selection for the next Supreme Court justice.

The nomination of Second Circuit judge Sonia Sotomayor is an exercise in racial and gender pandering. This nomination should make her the new face of Affirmative Action: someone who may or may not be qualified for a position but gets in on an Affirmative Action "twofer." The administration made no secret that they were looking for a woman and/or Hispanic--arrogantly walking all over the letter and spirit of the 14th Amendment's Equal Protection Clause. Either we, as minorities, are equal or we are not--searching for the best among a gender/class/race is to degrade the equality so many fought for and intimates that if a given token nominee were to be judged against a truly open field, they would fall short.

It is not without a heaping spoonful of bitter irony that Sotomayor's record is, by most accounts, relatively unremarkable save for an Affirmative Action case now being considered by the Supreme Court--Ricci v. DeStefano.* The case illustrates what is wrong with Affirmative Action and the mindset of those who implement it: the results of a race-neutral test for promotion within a fire department were thrown out, thus preventing all promotions, because not enough blacks passed the exam. The city was afraid of being sued, thus they blocked all promotions. How this amounts to justice--genuine or "social"--has yet to be rationally explained, to my satisfaction at any rate. (Feel free to attempt in the comments.) The would-be Ms. Justice Sotomayor sided with the city, blocking justly earned promotions in the name of racial something or other.

I fail to see how selecting someone for their race/gender/ethnicity is substantively different than picking only among old white men. If to do the latter is racist and/or sexist, so is the former. Simply changing the race/gender of the selected does not make it any less unfair nor does it give the decision some sort of made-up nobility. To do so is not just logically inconsistent, it is simply wrong.

I suppose that the administration was open about its happenstance favoritism should mean something, excepting the fact that this patent tokenism is being hailed as some sort of milestone for Hispanics. Unless Hispanic women read differently than everyone else, unless laws apply to them differently than everyone else, and unless there is a fundamental legal reason that a Hispanic woman should be on the Supreme Court, to delimit the selection process to exclude or severely hamper the chances of any gender or race--or a certain combination of the two--is overtly racist/sexist and anyone who argues differently is not to be taken seriously. (Notice, too, there were no black men on the shortlist. I guess we made our quota.)

If the "shortlist" candidates could hold their own against white men--and all indicators show that most of them could--there is no legitimate reason to exclude them. To do so cheapens the nomination and everyone associated with it. I don't know enough about Judge Sotomayor to say definitively one way or the other if she is qualified for the Supreme Court. However, when all signs pointed to "woman and/or Hispanic" immediately after Justice Souter's announcement--instead of "Judge Sotomayor leads the field of jurists and professionals due to her accomplishments/decisions/writings/unusually high esteem, etc."--I find it sickening that most people just took it as given that giving any job, let alone THIS job, on qualifications of happenstance--gender and race--is in any way acceptable.

While it should go without saying, the traditional counter-argument is "It's not that we're giving a job to someone strictly because they are Hispanic/a woman, but among qualified candidates..." Yeah yeah yeah. Well, a lot of white men were given jobs over as or more qualified blacks/women and were not given their positions strictly because of their race and gender either. Inexplicably, it makes all the difference in the world that excluding all but white males is morally reprehensible yet excluding those white and male is morally praiseworthy and cause for celebration.

Maybe with her swearing-in, we could get Judge Sotomayor fitted with a robe with a big shiny letter "T" on the front:

It isn't that she's not good enough--she very well may be eminently qualified. But the way in which she was selected inevitably casts a shadow on her nomination. Justice Thomas complains openly--and in his legal opinions--about Affirmative Action, yet so many of his critics point to it as the main, if not only, explanation he's on the Court himself. The fact that he's the most Constitutionally consistent justice on the Court doesn't seem to enter into it--what must be a particularly harsh smack in the face to a proud man who has endured as much as he has. (And I'm not denying his race wasn't a huge factor in his selection, but the fact that people use it against him only strengthens my argument that it taints the accomplishment.)

Judge Sotomayor should have been considered against a full field of candidates--not just those whose biological and ethnic traits met political qualifications that have no bearing on their jurisprudence.

*Full disclosure: My employer filed an amicus brief on behalf of the firefighters in the case.

Torturous Reading

So, I've been reading stuff on torture all over the place--as most wonks anywhere near my line of work have this week. I'll get into my take at another time, but I wanted to share this with you, from the dissenting view inside the Bush Administration. Read the whole thing, but this is the chilling conclusion:

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Seriously, you need to read the whole thing if you want to get an idea of how messed-up the thinking was over there.