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I've had to ratchet down my blogging considerably, so I missed the heights of the "Paulapalooza" regarding Rand Paul's statements a week and a half ago about his support for (or opposition to) desegregation of public accommodations.  I write this short diary today because the media has been asking the wrong question about Rand Paul's position -- and thereby giving him the chance for "plausible deniability" regarding his position.  This ambiguity should be eliminated.

Part 1

Simply put: we don't need to know how Rand Paul says (unconvincingly) that he would have voted on the Civil Rights Act of 1964.  We need to know whether, right now, he supports Title II of that Act.  Ask him the wrong question and you get an answer that doesn't quite say whether he currently favors repealing the government's barring discrimination by private actors in public accommodations.

Paul's final statement on this issue was that he supported the Civil Rights Act of 1964.  (Text at the link; useful Wikipedia summary here.)  Specifically, he said that he "will not support any efforts to repeal the Civil Rights Act of 1964."  With due respect, that's not the precise question to be asked.

The Act had ten "titles"; one could reasonably decide to repeal only one title of the Civil Rights Act, which is not the same as "repealing the Civil Rights Act."  Sen. Barry Goldwater opposed the Civil Rights Act based solely on his opposition to Title II, which mandated desegregation in public accommodations.  That's the same Title that Rand Paul raise.  We need to know specifically whether Paul favors, or favors repealing, Title II.

Here: I'll make it easier for reporters:

Mr. Paul, you've said previously that you would have supported the Civil Rights Act of 1964.  Would you have specifically, however, have favored a proposal to eliminate Title II from that Act?  Would you favor a proposal to repeal specifically Title II of the Civil Rights Act in 2011?

Part 2

Of course, we could simply address Rand Paul's assertion at face value.  Republicans, in the wake of the Paul blow-up, blamed Democrats for opposing the Civil Rights Act, something that they do from time to time; here's an example from 2000.  So there is another way to put this question.  Along with Barry Goldwater, 21 out of the 22 Senators from the 11 states of the old Confederacy opposed the Civil Rights Act.  The exception was the saintly Sen. Ralph Yarborough of Texas, who was attacked for that vote by his 1964 General Election opponent for the Senate seat, some guy named George H. W. Bush.  Here is the list of the other 21 "Old Southern" Senators, all except John Tower of Texas being Democrats, who all opposed the Civil Rights Act.

Alabama
John J. Sparkman
Joseph Lister Hill

Arkansas
J. William Fulbright
John Little McClellan

Florida
Spessard Holland
George Smathers

Georgia
Herman E. Talmadge
Richard Brevard Russell

Louisiana
Allen Joseph Ellender
Russell B. Long

Mississippi
John C. Stennis
James O. Eastland

North Carolina
B. Everett Jordan
Sam Ervin

South Carolina
Strom Thurmond
Olin D. Johnston

Tennessee
Albert A. Gore Sr.
Herbert S. Walters

Texas
John Tower

Virginia
Harry Flood Byrd
Absalom Willis Robertson

Some of those on this list (such as Senators Fulbright and Gore) reformed their ways over time; others (such as Senator Ervin) made contributions elsewhere.  But Strom Thurmond switched parties less than three months after that vote and Willis Robertson was Pat Robertson's father.  Does Rand Paul really ask us to believe that he would have stood with Sen. Ralph Yarborough against those on this list?  If so, he's such a liar that even the "objective" media ought to be willing to call him on it.

Part 3

In researching this diary, I came across a quote from almost-federal Judge and ranking Republican on the Judiciary Committee Jeff Sessions that made my eyes roll:

"My view is that issue has been settled – the courts have ruled on it," Sessions said. "If you open a restaurant, a hotel to the public then you can’t discriminate on who you allow to come in and out, I think that’s settled. I think America is better off that the segregation views are over, and that played a role in it."

I hate to break it to Mr. Sessions, for fear of giving him ideas, but no it is not the case that "the issue has been settled."  The courts did not rule in Heart of Atlanta Motel that people had a constitutional right not to be discriminated against in public accommodations.  They ruled that Congress had a right to regulate whether private actors could discriminate in public accommodations -- in other words, they rules that the Civil Rights Act was a constitutional exercise of Congressional power.  This is a statutory, not a Constitutional right; it therefore requires what Thomas Jefferson reminded us is "eternal vigilance," because what is granted by statute can be repealed by statute.  So, unfortunately, it is not settled and Rand Paul could lead an effort to repeal Title II if he chose.

That, Senator Sessions, is one reason why Rand Paul is so dangerous.  Frankly, if you don't understand the difference between a right embedded in the Constitution and one guaranteed by statute, you don't belong on the Judiciary Committee.

Originally posted to Doane Spills on Sun May 30, 2010 at 05:59 PM PDT.

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Comment Preferences

  •  If anyone has an inside connection to Jack Conway (18+ / 0-)

    or his campaign, I'd be happy to know that they got a look at this diary.

    I know that Rand Paul is passe given the oil volcano, but I don't want to forget him.

    "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

    by Seneca Doane on Sun May 30, 2010 at 05:59:47 PM PDT

  •  You are asking the wrong question. (1+ / 0-)
    Recommended by:
    wolfie1818

    When you ask if Rand Paul, or anyone else, would support Title II "right now", you are asking the wrong question.

    I won't support Title II "right now".  In today's world, it's clearly an unconstitutional infringement on the rights to free association and contract.

    But 46 years ago the world was a very different place.  Jim Crow era laws and institutions used state and local government power to deny a group of people their basic rights.  This corruption was so embedded, that federal power may have been required to break its hold, just as Grant used federal troops against the Klan in the Carolines.

    Today, remaining pockets of institutionalized racism (and, when it comes to government policy, we only care about institutionalized racism, right?) can be handled with the courts and the 14th Amendment.  Today's world doesn't require something as sweeping as Title II.

    Here's an interesting take on the controversy.

    Results count for more than intentions do.

    by VA Classical Liberal on Sun May 30, 2010 at 06:19:57 PM PDT

    •  "clearly an unconstitutional infringement ..." (2+ / 0-)
      Recommended by:
      OHdog, luckylizard

      I will not be debating this with you today.  If you don't feel the outrage, that's on you.

      "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

      by Seneca Doane on Sun May 30, 2010 at 06:23:23 PM PDT

      [ Parent ]

    •  So you would be perfectly okay (3+ / 0-)
      Recommended by:
      OHdog, Seneca Doane, luckylizard

      with someone dying in a backwoods town after an auto accident because the lone doctor won't treat "their kind", whether that be blacks, Jews, Catholics or whatever?

      Normal is a setting on a washing machine. -- escapee

      by Cali Scribe on Sun May 30, 2010 at 06:35:31 PM PDT

      [ Parent ]

      •  No, I'm not OK with that. (1+ / 0-)
        Recommended by:
        Prachar

        It would be a horrible situation and a offense to any decent human being.

        That said, why do you think the federal government can prevent this sort of thing from happening?  If at 3:00 am a racist, mother-fucking asshole doctor lets a black, jewish or catholic driver die, how is the federal government suppose to stop it?

        Saying we should just pass a low against this kind of discrimination is the easy answer.  It sounds great on paper, but it has no effect on the ground.

        Title II attempts to legislate away racism.  Our real job is much harder than that.

        Results count for more than intentions do.

        by VA Classical Liberal on Sun May 30, 2010 at 06:46:40 PM PDT

        [ Parent ]

        •  Hmm, maybe they could (4+ / 0-)
          Recommended by:
          OHdog, Seneca Doane, SciVo, boophus

          pass laws against discrimination in public accomodation, or laws that specifically apply professional standards of non-discrimination on doctors.  We have such laws.  They are enforced every day, by public agencies like the EEOC and by private litigation.  You can actually legislate away racism, in that individuals and corporations will learn over time that they will suffer significant financial penalties for discriminating on the basis of race, religion, sex, etc...

        •  What Obsessive Conservative Logic! (1+ / 0-)
          Recommended by:
          Seneca Doane

          No government can prevent any crime.

          So what?

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

          by Gooserock on Sun May 30, 2010 at 07:59:44 PM PDT

          [ Parent ]

        •  You can't stop them but then you have the law (1+ / 0-)
          Recommended by:
          Seneca Doane

          to punish them and make them vulnerable to lawsuit.

          Fear is the Mind Killer

          by boophus on Sun May 30, 2010 at 09:30:18 PM PDT

          [ Parent ]

    •  lol! Southerners never change. (1+ / 0-)
      Recommended by:
      Seneca Doane

      I'm gonna go eat a steak. And fuck my wife. And pray to GOD - hatemailapalooza, 052210

      by punditician on Sun May 30, 2010 at 06:41:22 PM PDT

      [ Parent ]

      •  I'm from Ohio. (0+ / 0-)

        Check a map.  We're a northern state.

        Results count for more than intentions do.

        by VA Classical Liberal on Sun May 30, 2010 at 06:47:56 PM PDT

        [ Parent ]

        •  We live near Cleveland. We know Southern Ohio (1+ / 0-)
          Recommended by:
          Seneca Doane

          with exception of Columbus includes a lot of Southern traditional people and some 19th century Appalachians too.

          Lighting one candle in the darkness gets less attention than lighting one stick of dynamite.

          by OHdog on Sun May 30, 2010 at 08:00:31 PM PDT

          [ Parent ]

          •  I grew up in North Western Ohio... (1+ / 0-)
            Recommended by:
            Prachar

            a mile from the Indiana border (BTW, Indiana was a seriously racist state in the 1920s, almost ruled by the resurgent KKK).

            I also went to school in Cleveland and have lived in a bi-racial family since 1981, if that makes any difference.

            Southern traditional people and some 19th century Appalachians too.

            If you are talking about the Appalachians in the West Virginia corner of Ohio, that isn't me.

            OTOH, Jim Webb, 2008 Net-roots Senatorial hero, has written 2 volumes praising the Scotch/Irish of the Appalachian, and I'm a big Blue Grass fan, so I'm not sure we need to go there.

            Results count for more than intentions do.

            by VA Classical Liberal on Sun May 30, 2010 at 08:11:46 PM PDT

            [ Parent ]

        •  VA Connotes Southern. And Living Near Cleveland (0+ / 0-)

          there are plenty of one time southerners who've been coming here for a century.

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

          by Gooserock on Sun May 30, 2010 at 08:02:47 PM PDT

          [ Parent ]

          •  Have you been to Cleveland? (0+ / 0-)

            there are plenty of one time southerners who've been coming [to Cleveland] for a century.

            That may have been true 60 years ago but today, overwhelmingly, Clevelanders leave Ohio to go to Sun Belt states.  I know because I'm one of them (if you count Virginia as Sun Belt).

            When I was in Cleveland, the biggest growth demographic was the Lebanese on the west side.  Parma and Parma Heights, in particular.

            And that was a good thing.  The Middle Eastern immigrants who were moving to Cleveland added a youth and vigor which Cleveland was missing in the mid-80s.

            I wish the city counsel was promoting that same energy today.  Cleveland was once one of the fastest growing cities in the US.

            It could be again.

            Results count for more than intentions do.

            by VA Classical Liberal on Sun May 30, 2010 at 08:23:57 PM PDT

            [ Parent ]

    •  Clearly how? (1+ / 0-)
      Recommended by:
      Seneca Doane

      You keep using the word "clearly" as if saying it proves it to be the case.  Saying it doesn't make it so.

      •  Even the loathsome get civil rights. (1+ / 0-)
        Recommended by:
        Prachar

        The important issue with Title II was the degree to which racial discrimination had been institutionalized in the Jim Crow south.  That situation clearly (yes, I'll use that word again) called for a federal response.

        But Seneca asked about "right now".

        Believe it or not, America has actually gotten better on racial issues in the last 46 years.  I know personally because I'm from a bi-racial family.

        We don't live in 1964 anymore.  So asking if anyone would support Title II "right now", as Seneca did, misses many very important changes.

        Results count for more than intentions do.

        by VA Classical Liberal on Sun May 30, 2010 at 06:56:11 PM PDT

        [ Parent ]

        •  What civil right are you talking about? (1+ / 0-)
          Recommended by:
          Seneca Doane

          I missed the part where the Constitution guaranteed a civil right to discriminate in the operation of a business the is open to the public, or to discriminate in employment or housing.

          •  I just read the title of his comment (0+ / 0-)

            Is he defending necrophilia here?  (See our discussion, above.)

            "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

            by Seneca Doane on Sun May 30, 2010 at 07:04:05 PM PDT

            [ Parent ]

          •  The 9th and 10th Amendments. (2+ / 0-)
            Recommended by:
            Support Civil Liberty, Prachar

            9th - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

            10th - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

            The founders understood that the Federal government had limited ability to affect local actions in the States and that attempts by the Federal gov to do so were likely to backfire.  

            I hope it goes without saying that I don't support any of the racists institutions of the Jim Crow south.  But I do question the limits of legal authority to change personal beliefs and attitudes.

            From my point of view, the single most effective thing the Federal government ever did to stop racism was to integrate the Army during WW II.  That forced people of different races to live with each other day to day and to see that they were no different.

            It's that kind of individual interaction which changes minds.  Not out-dated laws, which is what Title II would be if we attempted to pass it "right now", as Seneca is asking.

            Results count for more than intentions do.

            by VA Classical Liberal on Sun May 30, 2010 at 07:11:41 PM PDT

            [ Parent ]

            •  Oh, god, a Tenther (n/t) (3+ / 0-)
              Recommended by:
              Gooserock, OHdog, Seneca Doane
              •  That's it? (2+ / 0-)
                Recommended by:
                Support Civil Liberty, Prachar

                I write paragraphs about the practical limits of government power and you reply "Oh god, a Tenther"?

                There is a reason the Founders included the 9th and 10th amendments in the Constitution.  In fact, those 2 amendments are so important that the Constitution would never have been adopted without the promise of including them in a later Bill of Rights.

                The basic point here is that government can not change people's attitudes.  No matter how well-intentioned laws are, people continue to believe what they believe.  Attempts to over-come those beliefs are dangerous in and of themselves.  Hence the 1st amendment.

                For progressives, this means we have to word harder.  We can't just retreat behind the power of a federal law and say we are done.

                Our task is bigger than that.

                Results count for more than intentions do.

                by VA Classical Liberal on Sun May 30, 2010 at 07:21:21 PM PDT

                [ Parent ]

                •  If there's anything that would seem to fit (2+ / 0-)
                  Recommended by:
                  OHdog, Seneca Doane

                  pretty squarely in the middle of the intentions of the Interstate Commerce Clause, I would think that prohibiting racial discrimination in public accommodations would be it. If I'm a black businessman in New York, and I would like sell my products in Alabama, it's a direct infringement on my ability to do so if I cannot freely take advantage of the same public accommodations that everyone else does. That's a state-based limitation on interstate commerce -- how much more directly under that provision could you get?

                  I do understand and actually agree that the Commerce Clause has been used to regulate all kinds of activities with only the most tangential relationship to interstate commerce, and I would support a more restrictive reading.

                  But I almost think that you have to try to find a way to not see prohibiting racial discrimination in public accommodations as being squarely within any reasonable reading of that Clause.

                  •  I totally agree with this point. (2+ / 0-)
                    Recommended by:
                    Support Civil Liberty, Prachar

                    National and international corporations universally opposed the Jim Crow laws, for exactly the reasons you laid out above.  It cost them customers and was an infringement of their rights to free association and  contract.

                    That was a powerful, and in my view correct, argument in 1964.

                    But we don't live in 1964.  The US has changed, for the better.  When Seneca asked about supporting Title II "right now", Seneca missed almost 50 years of social change.

                    But I almost think that you have to try to find a way to not see prohibiting racial discrimination in public accommodations as being squarely within any reasonable reading of that Clause.

                    The Commerce Clause has been a quagmire since at least Wickard vs. Filburn.  

                    The Federal government has used the Commerce Clause to claim jurisdiction over marijuana states where medical marijuana is legal.   There are many other examples of the Commerce Clause being abused to justify intrusive Federal actions.

                    I'd personally like to see the Federal gov limited in these cases and let the States sort it out.

                    If that makes me a "Tenther", then I'm a Tenther.

                    Results count for more than intentions do.

                    by VA Classical Liberal on Sun May 30, 2010 at 07:43:18 PM PDT

                    [ Parent ]

                    •  Commerce Clause (1+ / 0-)
                      Recommended by:
                      Seneca Doane

                      If that makes me a "Tenther", then I'm a Tenther.

                      I don't see what you think the Tenth Amendment has to do with this at all.  If you think that the Federal Government doesn't have the authority under the Commerce Clause to pass this legislation, then just say that you don't think the Federal Government has the authority under the Commerce Clause.  You don't need to bring the Tenth Amendment into it.  Of course, you would be wrong about the Commerce Clause, but it would at least be better than bringing up something completely irrelevant like the Tenth Amendment.

                    •  It doesn't matter what year (0+ / 0-)

                      If you're argument is that we simply don't need Title II because who in their right mind would refuse to serve black people in 2010, then I think you're just being stupid. It doesn't matter. If the federal government has to power to enforce this, and we think it's a bad idea to allow anyone to refuse public accommodations on the basis of race, then it's a done deal.

                      My point is that this should not prevent us from paring back the Commerce Clause. I agree with you, it is out of control. The medical marijuana decision really obliterated all possible limits. Any activity that could conceivably have some kind of effect on interstate commerce, no matter how indirect, can be regulated. The next big case will be the individual mandate. We'll see if they want to draw a line somewhere on that.

                      But on a continuum of expansions of the Commerce Clause I would put it like this:

                      limited government----Title II--------------------Raich decision---individual mandate-------Socialism

                      •  That's not what I'm saying. (0+ / 0-)

                        If you're argument is that we simply don't need Title II because who in their right mind would refuse to serve black people in 2010, then I think you're just being stupid.

                        My argument is importantly different than this.

                        I'm saying that the 1964 Jim Crow laws, as a matter of locally enforced discrimination, are no longer as important as they were in 1964.

                        In 1964 they were institutionalized racism, they were enforced by state and local government and that made they federal issues under the 14 Amendment (especially under the privileges and immunities clause which is neglected under today's 14 Amendment jurisprudence).

                        Today, even the deep South has made progress against institutionalized racism.  It no longer rises to the level of a federal issue.

                        That individual racism which persists is beyond the federal government's ability to detect, prosecute and punish.

                        Results count for more than intentions do.

                        by VA Classical Liberal on Sun May 30, 2010 at 09:03:50 PM PDT

                        [ Parent ]

                        •  You really need to be clear... (2+ / 0-)
                          Recommended by:
                          Seneca Doane, pragprogress

                          and you're just not doing it.  There are government actors and private actors.  An example of the first could be a municipal library.  An example of the second would be a privately-owned coffee shop.  Title II of the Civil Rights Act prohibits discrimination on the basis of race, religion, national origin, etc... in both of these.

                          I honestly have no idea what you mean by "individual racism".  There is nothing to stop someone from having racist opinions.  There is nothing stopping someone from only inviting white people or only Catholics to dinner at their homes.  But someone who operates a public accommodation cannot discriminate on the basis of race, religion, national origin, etc....

                          Rand Paul seems to be saying supports civil rights laws as they apply to government actors, but not private actors.  When you talk about "institutionalize racism" you seem to be talking only about government actors, "state and local governments."  That is radically limited compared to our present Civil Rights law, which protects against discrimination in privately-owned public accommodation, privately-owned housing, and privately-owned employment.

                          •  Good questions. But... (0+ / 0-)

                            implementing the Civil Rights Acts requirements are much more complicated than the example you give.

                            Let's start with the easy questions. A municipal library may not discriminate against any group, for any reason.  A library (or municipal golf course or what ever) is a government institution and thus subject to due process and equal protection considerations.

                            As importantly, for anyone with a decent moral viewpoint, discrimination as described above, would be horribly immoral.

                            But how do we apply these ideas to today's world?

                            In the Jim Crow era, many local governments actively circumvented equal protection rights.  Southern governments either turned a blind eye to this discrimination or they actively supported a racist system (see Wyn Wade's excellent The Fiery Cross for details).

                            In this era, corrupt local officials would force their bigotry and racism onto all economic actors, regardless of those actors wishes.  That's what made the Jim Crow laws a literal "Federal Case".

                            But today, I don't think the same institutional racism exists.  If you, in Atlanta today, dare to server black people, locals may boycott your restaurant but they won't cut off your electricity.

                            That's the difference I see between supporting the Civil Rights Act of 1964 today vs. in 1964.

                            Not every problem which exists has a Federal solution and we, as a society, have moved beyond the remedies which were appropriate in 1964.

                            Does that help answer your questions?

                            Results count for more than intentions do.

                            by VA Classical Liberal on Sun May 30, 2010 at 09:58:27 PM PDT

                            [ Parent ]

                          •  No, you haven't answered anything (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            Can you just answer simple questions like

                            (1) Do you believe that the Federal Government has the authority to enact Title II of the Civil Rights Act of 1964.

                            (2) Do you think that it is desirable now that Title II of the Civil Rights Act of 1964 is an enacted law in effect?

                            These are simple yes-no questions.

                            I honestly have no idea what you are getting on about with your rambling about institutional racism.

                          •  Why are you obsessing over irrelevancies? (2+ / 0-)
                            Recommended by:
                            ortcutt, Seneca Doane

                            The question is: should (or can) the federal government prohibit discrimination by private businesses that serve the general public?

                            In 1964 when the question came up people like Barry Goldwater said, "No, the federal government does not have the power to force private businesses to do business with anyone that they don't want to."

                            You seem to be saying that this question is no longer relevant because society has progressed. But it's not true. The federal government still prohibits this kind of discrimination, and there are active cases about it.

                            The prohibitions have also been extended to housing and employment. Those areas are even more actively contested.

                            So, you're saying a bunch of things that don't shed light on the issue. The issue is discrimination by private businesses and whether the federal government has the power to prohibit it.

                •  Oh, please (1+ / 0-)
                  Recommended by:
                  Seneca Doane

                  Your interpretation of these clauses is so out-of-touch with Supreme Court jurisprudence that there is no point in discussing anything further.  But for the sake of educating you slightly...  

                  The Court stated in United States v. Sprague (1931), that the 10th Amendment "added nothing to the [Constitution] as originally ratified."  

                  In United States v. Darby, 312 U.S. 100, 124 (1941), the Court stated:

                  The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.....

                  The Court has only twice overturned statutes under the 10th Amendment, New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997), The standard is very narrowly defined.  The Federal Government cannot require states to act to enforce Federal law.  That is not involved in Civil Rights legislation, which is Federal legislation enforced by the Federal government or by private right of action.

                  But that's just the U.S. Supreme Court.  Evidently, you and the other Tenthers have the secret decoder ring which tells you the Tenth Amendment means something else.

                  •  Why does the 10th Amendment exist? (2+ / 0-)
                    Recommended by:
                    Support Civil Liberty, Prachar

                    If the 10th Amendment "added nothing to the [Constitution] as originally ratified.", then why does it exist?

                    The Framers were well educated and very literate.  Surely they knew the psychological importance of having 10 amendments in the Bill of Rights.  They recognized the rhetorical importance of asserting 10 rights (14 if you count the "5 Freedoms" of the 1st Amendment separately, which by itself was something of a rhetorical dodge).  

                    They didn't just throw in a bunch of stuff they'd forgotten in Philadelphia in 1787.  The Bill of Rights was designed.  It was designed for political reasons and it has a meaning far beyond the later idea that it "added nothing to the [Constitution] as originally ratified."

                    Results count for more than intentions do.

                    by VA Classical Liberal on Sun May 30, 2010 at 07:55:44 PM PDT

                    [ Parent ]

                    •  You've never uttered a truism? (1+ / 0-)
                      Recommended by:
                      Seneca Doane

                      People say truisms all the time.  They may even help reassure people even though they don't say anything more than the original.

                      •  If the 10th Amendment is a truism... (0+ / 0-)

                        then the ideas it contains are true.

                        That's a freakin' tautology. No way around that.

                        And if the ideas expressed in the 10th Amendment are true, than your Supreme Court citations are fallacious.

                        Results count for more than intentions do.

                        by VA Classical Liberal on Sun May 30, 2010 at 08:29:21 PM PDT

                        [ Parent ]

                        •  If you take it to mean that (1+ / 0-)
                          Recommended by:
                          Seneca Doane

                          The Federal Government has the authority to do what it has the authority to do, then I have no problem with the interpretation.  If you want to determine what the Federal Government has the authority to do, you need to look at Article 1, Section 8, not the Tenth Amendment.

                          •  Article 1, Section 8 doesn't help you at all. (2+ / 0-)
                            Recommended by:
                            Support Civil Liberty, Prachar

                            Where in the powers defined Article 1, Section 8 does the Constitution allow Congress to make laws like Title II?  

                            More importantly, there is a (admittedly blurry) moral and a constitutional issue here.

                            The important question isn't just does the federal government have the powers required to enact Title II, but can it, in the real world, pass a law to enforce Title II's prohibitions.

                            I don't think it can.  I think there is a hard limit to what government power can achieve and if you want to build a better world, you have to be ready to do the hard work which goes beyond passing some law.

                            Results count for more than intentions do.

                            by VA Classical Liberal on Sun May 30, 2010 at 08:53:45 PM PDT

                            [ Parent ]

                          •  The Commerce Clause (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

                          •  The Commerce Clause is not made of rubber. (2+ / 0-)
                            Recommended by:
                            Support Civil Liberty, Prachar

                            The entire Constitution is written on parchment.  The Commerce Clause is not written on some special substance which lets it stretch into any shape, as the political needs of the day dictate.

                            See The Switch In Time, That Saved Nine.

                            Results count for more than intentions do.

                            by VA Classical Liberal on Sun May 30, 2010 at 09:10:08 PM PDT

                            [ Parent ]

                          •  OK (0+ / 0-)

                            We can agree to disagree about the Commerce Clause.  It's at least a legitimate thing to disagree about rather than the Tenth Amendment or something else equally irrelevant.  

                          •  I don't think the 10th is irrelevant. (1+ / 0-)
                            Recommended by:
                            Prachar

                            This is an area where muddy water predominates.  Please let me clarify.

                            First, the kind of behavior Seneca first wrote about are loathsome.  The actions of many Southern property holders during the Jim Crow era where beyond anything civil people could tolerate.

                            Second, faced with this loathsome behavior, the federal government was limited in both its granted (i.e. the powers the Constitution gives it) and effective power (i.e. what it could practically do).

                            Third, the federal governments powers are limited here to correcting State's infringement of universal, civil liberties.  If today's racism (which is what Seneca was talking about when asking about "right now") does not rise to the level of institutionalized racism, then there is not state level remedy available.

                            Results count for more than intentions do.

                            by VA Classical Liberal on Sun May 30, 2010 at 09:31:54 PM PDT

                            [ Parent ]

                          •  Huh? (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            The Federal Government's authority is sufficient to enact the Civil Rights Act of 1964.  A unanimous Supreme Court decided that in Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964).

                            http://en.wikipedia.org/...

                            The Federal Government's effective power is pretty f*cking strong given that the US DOJ can bring suit to enforce the law.  An owner of a public accommodation who defies a court's injunction should expect to spend time in jail for contempt of court.

                            I have no idea what you are talking about in the third point.  Are you just saying that the Federal Government doesn't have authority to regulate privately-owned public accommodation.  If you think that, then say that because it would be a lot clearer.  Obviously, I and the Supreme Court disagree, but at least I'd have some idea what the hell you are talking about.

                          •  The Federal Government Does not... (1+ / 0-)
                            Recommended by:
                            Prachar

                            Have the power to regulate privately-owned "public" accommodations.

                            There, I said it.

                            Obviously, I and the Supreme Court disagree

                            The Supreme Court also decide that human beings are really property (Dred Scott), separate but equal is a fine and dandy idea (Plessy v. Ferguson), the government can force sterilization (Buck vs. Bell), funny looking people can be locked in camps (Korematsu v. United States) and that local governments can give your property to private companies who promise greater tax revenue (Kelo v.s City of New London).

                            Remember, the Supreme Court is infallible because they are final.  They are not final because they are infallible.

                            Results count for more than intentions do.

                            by VA Classical Liberal on Sun May 30, 2010 at 10:10:29 PM PDT

                            [ Parent ]

                          •  Why couldn't you have said... (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            that you didn't think that the Commerce Clause gives the Federal Government the authority to enact Title II of the Civil Rights Act of 1964 a dozen comments ago?

                          •  Because I went to bed. (0+ / 0-)

                            It was after 1:00 am.

                            Holiday weekend or not, that's my limit.

                            Results count for more than intentions do.

                            by VA Classical Liberal on Tue Jun 01, 2010 at 08:23:23 PM PDT

                            [ Parent ]

                          •  One more thing though (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            You can't have it both ways.  You can't say vague things about the Civil Rights Act of 1964 being necessary in 1964 but not today if you really think that it exceeds the authority granted to Congress by the Constitution.  You really have to be able to look the people who sat in at lunch counters in the eye and say "I'm sorry but there isn't anything we can do for you."  There are consequences to ideology.  This is what Rand Paul had such a hard time with.  He clearly believes that Title II exceeds the authority of the Commerce Clause, but he doesn't have the honesty to say tough-luck to the people who would almost certainly still be suffering discrimination if not for the Civil Rights Acts.

                          •  My previous comment was... (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            as answer to your first question.  I have no idea what you even mean later in your comment.  Title II provides for a public and a private right of action for enforcement.  The US DOJ can bring a lawsuit or a private individual can bring a lawsuit.  If a court finds there to be a violation, the court can impose monetary (for private litigators only) and injunctive remedies.  So, yes, in the real world, Congress can pass Title II of the Civil Rights Act of 1964.  I have no idea why you think otherwise.

          •  The Constitution is a restraint on government (1+ / 0-)
            Recommended by:
            Support Civil Liberty

            not on people.

            •  Not Article 1, Section 8 (1+ / 0-)
              Recommended by:
              Seneca Doane

              It enumerates the powers of the Federal Government.  That doesn't restrain government.  I sometimes think that Libertarians forget that there is more to the Constitution than the Amendments.

              •  You made my point (0+ / 0-)

                The Constitution "enumerates the powers of the Federal Government."  The federal government may not go beyond the enumerated powers granted to it by the Constitution (the federal government does anyway).  The Constitution does not put restraints on individuals.

                •  Indeed! In order to do that, there would have (1+ / 0-)
                  Recommended by:
                  Prachar

                  to be some authority for them to make such laws as were Necessary and Proper for the exercise of those powers, or something like that!

                  By the way, the Thirteenth Amendment puts a direct constraint on individuals -- and a good thing, too, eh?

                  "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

                  by Seneca Doane on Mon May 31, 2010 at 11:13:07 PM PDT

                  [ Parent ]

                  •  I see the 13th (0+ / 0-)

                    as freeing individuals and putting restraints on institutions.  (Semantics or just my illogical slant)

                    •  Yeah, you see it that way (0+ / 0-)

                      People who have read it see it this way:

                      Section 1. 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.

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

                      "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

                      by Seneca Doane on Tue Jun 01, 2010 at 09:53:24 PM PDT

                      [ Parent ]

                      •  What was the point of the last post? (0+ / 0-)

                        It still looks to me like the 13th frees individuals and bans the institution of slavery.

                        •  Sigh (0+ / 0-)

                          Try holding a slave and see if you are constricted as an individual (my argument) or only as an "institution" (yours).  Your distinction, three comments above, turns out to be meaningless at best.  There's also case law interpreting this if you care to look it up.

                          "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

                          by Seneca Doane on Thu Jun 03, 2010 at 07:35:01 AM PDT

                          [ Parent ]

        •  Ask Hispanics in Arizona or Indians how good it (1+ / 0-)
          Recommended by:
          Seneca Doane

          has become

          Fear is the Mind Killer

          by boophus on Sun May 30, 2010 at 09:33:10 PM PDT

          [ Parent ]

    •  Forbes. Com is Interesting? (2+ / 0-)
      Recommended by:
      Seneca Doane, SciVo

      There's a shitload of discrimination still going on. Like differential rates for business loans and mortgages for example. The kinds of things that can break upward mobility.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Sun May 30, 2010 at 07:57:59 PM PDT

      [ Parent ]

  •  Thanks for the history lesson... (1+ / 0-)
    Recommended by:
    Seneca Doane

    I didn't know ayatollah Pat's dad was an anti CR senator, puts his ravings in somewhat better context. The 'dixiecrats' are gone but the Reptilicans have taken their place, and are even more self-righteous, as shown by  R.Paul. The battle is still being fought, but it's gone 'guerrilla'.

    "God is an iron" -Spider Robinson

    by oldcrow on Sun May 30, 2010 at 06:30:26 PM PDT

  •  Yes, yes, yes! (1+ / 0-)
    Recommended by:
    Seneca Doane

    Chi miigwech ("many thanks") for this, SD.

    Authentic Native American silverwork, jewelry, photography, and other art here.

    by Aji on Sun May 30, 2010 at 06:40:37 PM PDT

  •  It doesn't matter if he would seek repeal... (4+ / 0-)
    Recommended by:
    LNK, Seneca Doane, luckylizard, SciVo

    of Title II or the whole Civil Rights Act of 1964.  He has no ability to do so given that there is no legislative will to do so.  He is dodging the main point by framing his answer in that way.

    What is important is Rand Paul's adherence to an ideology that sees discrimination in the public sphere as acceptable.  Parts of the public sphere take place on private property, e.g. public accommodation (restaurants, hotels, etc...), employment, and housing.  Liberals see this protection of a public sphere in which we are treated without discrimination as a fundamental right.  Libertarians see nothing but private property rights.

    The question to ask is whether he supports Title II of the Civil Rights Act of 1964.  Does he support the Civil Rights Act of 1968's prohibitions on discrimination in housing?  Does he support Civil Rights Act of 1964, Title VII's prohibition on discrimination in employment?

  •  Oh, hell, I wnated to moveon adn aks Rnad about (1+ / 0-)
    Recommended by:
    Seneca Doane

    labor laws and all that Seeing the southern GOP senators with their brief in a wedgy during the Solis hearing made me curious about an extension of this private vs public Venn diagram that in Ron's son. There are restrictions on the ages of workers and hours and conditions that the capitalist on their private property can get away with sans repercussions. Again not a Constitutional guarantee, but the statutory one.

    And for the side argument I live and work right in the midst of Antietam Battlefield and all that stuff. I sort of thought that These United States gave way to The United States after all that marching around. Look up that semantic change.

    Anyone who has the power to make you believe absurdities has the power to make you commit injustices -- François-Marie Arouet

    by CA Berkeley WV on Sun May 30, 2010 at 07:42:18 PM PDT

  •  My current favorite example about civil rights (3+ / 0-)
    Recommended by:
    ortcutt, Seneca Doane, SciVo

    because it is so sane and because it is a perfect thing to use as an example (no echo of Jim Crow, no obfuscation).

    This is from NY State.

    http://www.abcny.org/...

    SNIPPETS:
    INTRODUCTION

    People with disabilities use -- and have a right to use -- the same facilities and services used by those without current disabilities; use of a service animal almost never limits that right.

    SNIP

    MESSAGE TO MANAGERS AND EMPLOYEES OF PUBLIC
    ACCOMMODATIONS

    It is unlawful to discriminate against a person who is enjoying or seeking to enjoy a place of public accommodation (including a public entity) solely because that person has a disability and is accompanied by a guide dog, hearing dog, or other service animal.  

    SNIP

    Not all disabilities that require the use of service animals are visible. Many are hidden, such as epilepsy, heart disease, lung disease and those that are of a psychological/emotional origin. A person with a disability is not required to give you any verbal or written confirmation to establish his/her disability. The animal used need not be formally trained to perform as a service animal. You may exclude any animal, including a service animal, from your facility when that animal's behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually.

    Media Reform Action Link http://stopbigmedia.com/

    by LNK on Sun May 30, 2010 at 09:19:49 PM PDT

  •  A waste of time (1+ / 0-)
    Recommended by:
    Prachar

    If you keep up this line against Paul, he will win big time.  It is much ado about nothing.  1) most people at this point understand that he is a libertarian of sorts, and he is not stating opposition to the 1964 law because he is a racist but because he is opposed to federal encroachment in the same way he would be opposed to the government censoring unpopular speech; and 2) no one thinks there's a snowball's chance for Title II to be repealed.

    •  How is public accommodation law... (1+ / 0-)
      Recommended by:
      Seneca Doane

      at all similar to the censorship of unpopular speech?  Shouldn't voters be concerned that Paul is evidently enough of libertarian ideologue that he thinks that discrimination on the basis of race, religion, national origin in public accommodation is acceptable?  As someone who greatly values the fact that we live in a nation in which it is prohibited to discriminate in public accommodation, employment, and housing, I think it's not something to sweep under the rug.

      •  Freedom of association (1+ / 0-)
        Recommended by:
        Support Civil Liberty

        is just as important as freedom of speech.

        •  Umm, no (1+ / 0-)
          Recommended by:
          Seneca Doane

          The Court has quite clearly distingished between public accommodations and private associations.  If you are one of the latter, go ahead and be discriminatory.  If you're doors are open to all comers, then you are a public accommodation subject to regulation.

          http://en.wikipedia.org/...

          •  How is that possible under the cmmerce clause? (1+ / 0-)
            Recommended by:
            Prachar

            I'm sorry, but the Supreme Court cases are wrong and, frankly, frightening in their use of the interstate commerce clause.  They render the Constitution virtually meaningless, because if the commerce clause is elastic, then what restraints are there on the federal government?  The idea that the solo owned coffee shop I am sitting in can somehow be regulated by the federal Congress as to who can or cannot walk in its door is not right.  It is absurd to suggest that people are traveling interstate to come to this coffee shop.  The State certainly has a right to regulate the coffee shop under the State's police power (and I have no beef with local/state discrimination regulation) but the the federal government.  By centralizing power in the federal government (and increasingly in the Executive), we are ruining local communities and community accountability.

          •  You are assuming (0+ / 0-)

            I agree with the Court's interpretation.  I believe freedom of association is every bit as important as freedom of speech.

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