Sheridan: Con-Law

LYNCHING

During the recent filibuster controversy, in which Democrats threatened to filibuster several of the most conservative federal court nominees of a president playing to his conservative base, I was surprised to see the tool used by liberals in light of its history as a tool used by conservative segregationists to promote states rights for the South and no rights for Blacks in the South.

The Southern Bloc of senators led by Richard Russell of Georgia (see Caro's bio of LBJ, "Master of the Senate") consistently blocked passage in the Senate of civil right bills in the "people's chamber," the House of Representatives.  The House could feel good and pass all the civil rights bills its members wanted with no fear that they'd actually become law.  The president was also protected, politically, from having to deal with civil rights.  He could point to those shell-backs in the Senate over whom he had no control but had to get along with.  Result: stalemate, while blacks remained sidelined from the mainstreams of U.S. culture, such as it is.

The assassination of JFK and the ascension to the presidency of LBJ led to the passage of the 1964 Civil Rights Act and in 1965, the Voting Rights Act, which empowered blacks legally and politically.  Four decades later the result is observable, if not yet fully achieved.

From the end of Reconstruction in 1876, with the election of Rutherford B. Hayes over Samuel J. Tilden in a contested election decided in the House, a deal was cut to remove federal troops from the South.  They'd been there keeping the peace, more or less, since the end of the Civil War.  Now they were gone and the white South rose again wearing white bedsheets and pointy hats, terrorizing blacks with burning crosses and hangings, torture, and burning, to keep them in line.  Thus rose Jim Crow.  The hangings were called lynchings.  One meaning of lynching was "rescuing" an accused person from jail and hanging him before he had a chance to be tried.  In the South, more commonly, it was mob action hunting down, capturing, hanging, and sometimes burning a black for an alleged affront to the Southern Way of Life, which held that no black could look at a white woman with interest even when she looked at him with interest.  Emmett Till was lynched for allegedly whistling at a white woman.  The trial of his alleged killer(s) is in progress now, over four decades later.

Yesterday, the Senate formally apologized for being the racist institution it was for so many decades.  The filibuster was its ultimate weapon.  This misuse of Senate procedures is why I was unable to endorse its use by anyone, today, much less liberal Democrats, although I can certainly understand why they resorted to it.

We have other loaded weapons lying around, including the rule of Korematsu, never overruled, which holds that government may classify according to race (in that case it meant putting Japanese-Americans in concentrations after Pearl Harbor) if it seems necessary enough.  This almost guarantees its re-use in the future when things go bad, as they did at 9-11.

You can read the story of the Senate's apology for failing to outlaw lynching below, from the New York Times.

According to one commentator on yesterday's radio, lynching died out as a practice after Southern states, fearful that Congress might eventually pass an anti-lynching law, decided to prosecute these murderers themselves, rather than to lose control of the criminal justice process.

What federal power would Congress have to enter and regulate in the criminal law field, reserved to the states traditionally?

Commerce Power?  Doubtful.

How about Section 5 of Amendment 14, Congress's power to enforce equal protection of law and due process of law?  Lynching may be considered an artifact of the White Supremacy/Slavery system, one of its "badges and incidents," in my view.  See the Civil Rights Cases of 1872 for 'badges and incidents.'  Terror was a control mechanism to keep slaves from running away.  To the slave owner, a slave was just property, money with legs.

Here's the Christian Science Monitor's report.

FILIBUSTER: DEMOCRATIC OR NOT?

The United States has been seriously affected by an institution, a parliamentary device really, called the filibuster.

The deal is that Senators have the right to debate the merits of a measure for as long as they want.  Usually they don't want to debate all that long and they soon vote up or down on a pending bill and move on.

However when senators get really exercised over what seems to be a life-or-death measure, they'll talk until the cows come home.  Southern Sen. Strom Thurmond (D - S. Carolina) filibustered the 1964 Civil Rights Bill for over 24 hours straight to keep it from coming to a vote and passing, as it eventually was.  It put the teeth into the notion of integration in public restaurants, hotels and accommodations.  Integration was THE big issue of the day when I was growing up.  Now we take it for granted, but it took another civil war to accomplish and there's still a far piece to go.

During a filibuster, the senator needs something to say.  So he'll read the phone book from his state.  Reading all those names of his voters who would, if asked, oppose this bill, is good for taking up a few hours.  Or, the Bible, always good for any number of hours.  This is relevant to the bill, of course.  How?  That might take more time to explain.

Taking more time to explain is what a filibuster is about, for while a bill is being filibustered and the phone book read, all Senate business, the nation's business, comes to a screeching halt.  For days the Senate is put out of business, for the filibustering senator is entitled to yield the floor to his fellow supporters who have come to the chamber armed with reading material.  The sergeant-at-arms sets up cots and blankets nearby so the filibusterers can get a little much needed shut-eye.  And so the filibuster continues.

Military appropriations bills stall.  The president's legislative program stalls.  And the nation is treated to their senators looking like their village idiots.  Except for those who favor defeating the bill being filibustered, like the South on Civil Rights.

When I was growing up, the filibuster was THE main tool of the so-called Southern Bloc of senators, led by Richard Russell of Georgia, to block ANY civil rights legislation from coming up for a vote in the Senate.  If you'd care to read the tale well told, see Robert Caro's second volume on Lyndon Baines Johnson called "Master of the Senate." 

LBJ had to deal with this as the Senate Majority Leader whose northern Democrat wing, led by Hubert Humphrey of Minnesota and Paul Douglas of Illinois and others from the Northeast were pushing for civil rights for the nation's ghetto-ized, marginalized, non-voting, segregated blacks.  What LBJ did was talk "cracker" to the South and human rights to the northern liberals. 

LBJ wanted to be president someday.  He'd been working at it for decades.  He told the Southern Bloc that if they wanted to see a good ol' southern boy as president some day, they'd better let him throw a bone to the northern liberals in order to do some good for the blacks.  He proposed taking the teeth out of the pending 1957 Civil Rights Act.  It was unenforceable.  The northern liberals howled over the betrayal. 

LBJ argued, take what you can get whether you like it or not, this is the first civil rights bill that stands a chance of passing since the one of 1868.  This is the camel's nose under the tent.  The north took it.  1964 was next, followed by the Voting Rights Bill of 1965. 

The nation has never been the same.  It has been immeasurably better since we lanced the boil of institutionalized racism infecting so much of the country.  In those days, racist talk was expected, sort of like talking baseball or the weather.  It was how people let each other know whether they were good fellas or not. Sort of like telling anti-gay jokes.  There is a whole genre of anti-black jokes, anti-Jew, anti-Polish, anti-Italian, and anti-anything jokes that serve this function of indicating what kind of a person you want to be seen as.

Today it is politically incorrect to be heard telling such jokes, or to tell them yourself.  Too much bad comes from them.  In Germany now, the schools identify the sort of jokes and things said that are understood to be forms of racism and anti-Semitism, whether veiled or direct.  Why?  To try to avoid going down the wrong road again.

So if you ask me whether I feel that the filibuster is a wonderful democratic technique to insure the nation's checks and balances, I don't buy it.  Filibustering was the technique for blocking passage of a federal anti-lynching law for decades while whites captured, tortured, strung up, photographed, partied under, and burned Americans for the crime of being black.  Filibuster was the most anti-democratic device invented by the evil mind of man to deprive other men of the same rights enjoyed by the filibusterer.

This comes up now because the shoe is on the other foot.

A Conservative Republican administration catering to its far-right wing has nominated some 214 federal judges of whom 10 have been rejected by Democrats as being too far out of whatever the mainstream is these days.  The Republicans are outraged at this blocking of THEIR court-packing plan.  They want to keep pushing.  The Dems, led by Sen. Charles Schumer of New York, a Harvard Law grad and no slouch as a fighter, debater and lawyer, is leading the the threat of filibuster.  The Repubs do not have the votes to close down the filibuster, which needs a super-majority to achieve "cloture," as it is called, 60 votes, I think.

So the Repubs are looking to various alternatives to get around the threatened filibuster, such as by passing a law prohibiting filibusters over federal judicial nomination.  The "nuclear option" or the "constitutional" option are some of the terms being used to describe the impending constitutional crisis.

The filibuster was not intentionally built into the framework of democratic government.  If you were writing up a new constitution for any nation on earth, including ours, you would never include the right to talk a measure to death by talking forever as an express textual right for all time.  You might allow for a reasonable time to talk, no less than, say three or four days, to give a measure, such as going to war or relinquishing the Panama Canal a fair shot at being aired, but then onto a vote or other business.  But maybe I'm missing something about free speech here.

Even free speech has its reasonable restrictions, and filibuster, by definition, is an unreasonable exercise of the right to speak to bring national business to a halt in the name of national business.  'Tis a conundrum, but one I can't see supporting.

Someone tell me, please, why filibuster is good just because the speaker may favor my side of a debatable issue.

Well, my question has been answered, in the form of a letter circulated to conlawprofs, requesting endorsements.  I didn't sign on, for the reasons stated above.  But some quite respected people have, including my own conlawprof at NYULS four decades ago, Norman Redlich, who has signed on in favor of the filibuster, at least for now.  That give me pause. 

I still have trouble believing that such a rule as allowing the filibuster is good.  It's good when you REALLY, REALLY, need to obstruct the majority because of what you think is the tyranny of the majority, as the South did during the civil rights era.  Or as the folks today who want to block some of Pres. Bush's far-right judicial nominees.

This seems like a helluva way to run a railroad.  Watch out for the logs we've piled onto the tracks to keep the train from proceeding towards its destination, because we don't like its destination, so we'd rather derail it.

This is democracy?

Filibuster is more like the opening shot of the next civil war.  Maybe filibuster is good in the sense that at least we don't have bodies lying all over the field as at Gettysburg.  We'll have a bloodless civil war, in the meantime.