Last week the New York Times ran my response to an editorial it had written. The editorial had condemned felon disenfranchisement in the course of praising a recent Alabama bill, and here is my response:
I have no quarrel with Alabama’s decision to define better which crimes should lead to disenfranchisement, and I agree with your editorial than some parts of its line-drawing make more sense than others, but it is wrong to say all felon disenfranchisement laws are “racist, pointless, anti-democratic shams.”
If a particular law is shown to be racist, the Supreme Court ruled long ago that it will be struck down, as your editorial acknowledges. But that evidence doesn’t exist for laws now on the books, which is why their opponents no longer bother to litigate.
Nor are the laws pointless: If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote.
And they aren’t anti-democratic. We don’t let everyone vote: not children, not noncitizens and not people who have committed serious crimes against their fellow citizens. Self-governance requires some level of responsibility and commitment to our laws.
The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. After all, the unfortunate truth is that the majority of people who walk out of prison will be walking back in.
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Follow-up on Foreign-Language Ballots – I mentioned in an email last month that I participated in a Federalist Society discussion on voting issues, and pointed out in that discussion the policy and constitutional problems with Section 203 of the federal Voting Rights Act. That statute requires some jurisdictions to print ballots and offer election-related materials in foreign languages. As a constitutional matter, I noted, this provision raises serious federalism concerns and equally serious concerns about Congress exceeding its authority to enforce the right to vote regardless of race. Its constitutionality aside, this provision is also objectionable on a variety of policy grounds.
I elaborated on all that in the email, and you can now take a look at my Federalist Society appearance on this video (I come in at the 00:57:20 mark and my participation continues until the 01:04:50 mark).
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Fruits and Nuts – So the nutty government of East Lansing, Michigan, has decreed that a farmer — who lives twenty miles away and has decided that, for religious reasons, he would rather not permit same-sex marriages to be performed on his property — will not be allowed to sell his fruit in the city’s farmers market. The Alliance Defending Freedom has brought a federal lawsuit on the farmer’s behalf, and George Leef has all the details here. Just imagine if the shoe were on the other foot and an unprogressive city decided to punish someone because of religiously-held progressive views. There would be a huge demand for rotten tomatoes.
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NHL Playoffs Vindicate Trump – Congratulations to the Pittsburgh Penguins on winning their second straight Stanley Cup last night, the only time that feat has been achieved in the salary-cap era.
The President is having his frustrations these days, so I want to point out that the NHL playoffs were kind indeed to those teams from states that went for Donald Trump last November. Four such teams were among the 16 in the post-season: Pittsburgh, Nashville, Columbus, and St. Louis. None lost a series except when playing against a city from another Trump-voting state. The team Pittsburgh defeated last night in the finals was Nashville, the playoffs’ surprise. Chicago and Boston, on the other hand, made early exits.
And note, finally, what the four teams that Pittsburgh defeated en route to the Cup have in common: Columbus, Washington, Ottawa, and Nashville are all capitals. They had no chance against the Steel City outsider.
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Short Notes on the Big Picture – Let me conclude with some recent notes I wrote quickly in preparation for a meeting among conservatives about what we should be doing on race-related issues:
Let’s ask first, where do we want to end up? No race-based discrimination by government, for sure. Not by private parties either, given the statutes on the books. We want good race relations more broadly: E pluribus unum, no identity politics. And all this is easier if there are fewer de facto racial disparities, which are rooted in cultural differences, especially out-of-wedlock birthrates.
How do we get there?
By and large the legal tools exist to end most race-based decisionmaking (racial preferences and disparate impact), or would be if the Constitution and statutes were interpreted correctly. Sometimes, though, incorrect interpretations necessitate corrective action by the Executive Branch or Congress.
Preferences are most common in contracting, employment, and education, and also voting (redistricting). Disparate impact is found in employment and voting, and also housing/credit and programs (especially school discipline, policing, environmental justice, and language) under Title VI of the 1964 Civil Rights Act, which forbids racial and ethnic discrimination in federally funded programs (there’s a disparate-impact public accommodations case pending in Ninth Circuit). There are also other race-based provisions in random federal and state laws.
So at the federal level, in terms of law, we need to identify and bring good cases in the courts, pass good legislation, and make friends with the relevant Executive Branch officials. Same thing really at the state level. Here’s my dream agenda for the Supreme Court.
But there are also the culture wars. On the one hand, you can observe the insanity at Evergreen State University (to give one example) and conclude that things have gotten completely hopeless and out of control. On the other hand, if you ignore campuses (and Black Lives Matter) as outliers and, instead, look at the rest of the country, and you can feel pretty good about American 2017 versus America 1964 versus America 1861. It would be nice if more nonconservative newspapers, pundit, politicians, and other leaders would say, “You know, I’m not a conservative, but these student and BLM protestors are crazy and irresponsible and have no sense of history or perspective.”
