The Seating of Hiram Revels and the Meaning of the Fourteenth Amendment

You know, I have told this story several times privately and it occurred to me that it was the perfect kind of thing for my blog, given my general legal and history geekery.  I thought I would tell you about the first black man seated in the Senate, the Reverend Hiram Revels.  This is him at the right.

One of my side projects when I was an undergraduate student was studying the history that surrounded the passage of the Fourteenth Amendment.  I was keenly interested in what the anti-discrimination principle meant to them.  That is why, for instance, I learned so much about Thaddeus Stevens.

And one of the veins I studied was the story of the seating of Hiram Revels.  For a day or two I sat in the library at my school reading the congressional record as they considered the issue and it actually is a fascinating story.

The year was 1870, and this was to be the first year that Mississippi was to be allowed to have representation since the Civil War.  Back in that day, senators were chosen by the state legislature.  That is, instead of choosing your Senator by direct election, the legislature voted for its choice to be your senator.  So when you hear of Abraham Lincoln running against Stephen Douglas, what he actually was doing was he was campaigning for his party as a whole in the state, so that they would have enough power in the legislature to make him the Senator.

That is important because that meant that when Mississippi was let back into representation in Congress, they had two choices of seats to offer Mr. Revels, and it was up to the Mississippi legislature to choose which one they offered.  And whose seat did they give him?

Gloria Allred Hypocritically Tries to Get Limbaugh Prosecuted Under a Sexist Law

Update: Thanks for the linkage from Overlawyered, which correctly notes it might be "counterproductive" to give Ms. Allred additional publicity.  I agree normally, but this is too thuggish to ignore.  They also link to this Volokh piece which goes into more depth about problems with this law.

For some on the left it is not enough to disagree with what someone said.  No they want to see that person destroyed, terrorized and imprisoned, for holding an opinion that they don’t like.  Not everyone on the left, of course.  There are decent liberals who believe in freedom of speech, but there is this creeping fascist tendency.

A case in point is Gloria Allred.  She was last seen simulating masturbation with a baseball bat on national television (yes, really).  And now she has jumped into the Limbaugh/Fluke controversy with a demand to prosecute Limbaugh for calling Fluke a slut and a prostitute.

Let’s take a moment to review what Limbaugh actually said, because it is important.

"What does it say about the college coed who goes before a congressional committee and essentially says that she must be paid to have sex?" Limbaugh continued, “It makes her a slut, right?  It makes her a prostitute. She wants to be paid to have sex."

So based on this statement Gloria Allred, ostensibly representing the Women’s Equal Rights Legal Defense and Educaton Fund (of which she is the President) has demanded that Rush Limbaugh be prosecuted for saying this under Florida Statutes §836.04 which states that:

836.04  Defamation.—Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

You can indeed read the letter she wrote demanding this prosecution, here.

Does anyone else see the problem with this law?  It’s very language contains a discrimination based on sex—it applies only to imputations of a lack of chastity against women.  And I thought that this legal organization—and Ms. Allred herself—was opposed to sex discrimination.  Indeed Allred’s site states that she is “a tireless crusader against discrimination in all areas of our lives.”  Oh, except in the criminal law in Florida when a prominent Republican or conservative is involved.  So this attack on Limbaugh is deeply unprincipled as is any "feminist" who cheers it on.

And this is probably a fatal flaw in the statute itself.  I am not being ideological when I say this, but almost any lawyer will tell you that this law is unlikely to be upheld under the Equal Protection Clause of the Fourteenth Amendment which prohibits many forms of discrimination.  As the Supreme Court has repeatedly said “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives[.]”  U.S. v. Virginia, 518 U.S. 515 (1996).  It’s important to note that in this case the test wouldn’t apply to the general concept of protecting a person’s sexual reputation, but instead the legislature’s decision to protect a woman’s sexual reputation and not a man’s.  That discrimination has to serve this important governmental purpose, and in my opinion it is unlikely that any court will find that it does.

But sharp eyed lawyers will know that U.S. v. Virginia didn’t even apply this standard, but went with even tougher-sounding language: “Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.”  Court observers interpret this as introducing a new, even higher standard for consideration, but still below the strict scrutiny afforded racial classifications.  For my money, I am not sure if it is supposed to be a higher standard or a clarification of what the old standard means, but I am open to that interpretation.

What kinds of discrimination pass would muster?  Bluntly I think it would have to be something that involves almost tautological truths.  For instance, it will never be considered unlawful sex discrimination to place urinals in men’s rooms and not women’s rooms.  It is unlikely to be considered sex discrimination to provide prostate exams for men only, or for breast exams for women only.  And indeed I doubt the Supreme Court will find that separate bathrooms by sex is sex discrimination the way bathrooms separated by race was considered racial discrimination.

So I can practically see the Supreme Court opinion talking about how this law was based on outdated mores and so on.  One fully expects this passage from Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) to be cited:

Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

The idea that it is some great harm to attack he sexual purity of a woman, but not a man, is precisely the kind of archaic and stereotypic notion that the courts will frown upon.

And it is worth noting that this law is indeed very rarely enforced and once when it was challenged based on the sex discrimination in the statute prosecutors withdrew the charge.

And one thing that is important to note is that Allred almost certainly knows this law is unlikely to survive any challenge under the Equal Protection Clause, or at least she would if she took five seconds to think about it.  So she is urging Limbaugh to be prosecuted, forcing him to spend time and money, when she knows—or should know—that any prosecution would be unsuccessful.  It is thuggery, pure and simple, mixed with publicity seeking.

And there is indeed another problem with this law, although it is less gloriously ironic than Allred pushing the enforcement of a sexist law: it probably isn’t defamation.  Go back and read Limbaugh’s comments again.  His entire knowledge of this woman’s sexual activity amounts to his knowledge that she wants to get birth control pills.  And based on that fact alone (“It makes her”), he calls her a slut, and based on the fact she wants us to pay for it, he calls her a whore.  This was an uncharitable assessment, and he is right to have apologized for it, but it was his opinion based on undeniable facts and thus is protected speech as “fair comment.”  It was wrong, but it is legally protected.

By the way, do you know how epically silly this is?  A Daily Koser agrees with me.  I discovered this just as I was wrapping up the post:

The Florida statute (which bans all anonymous publication, including many writers on DailyKos) is one of the worst examples of sexist paternalism, pretending to “protect” women by treating them like weaklings needing the defense of the state against offenses to the virtue. It's no small irony that at the bottom of Allred's letter is the text of the never-adopted Equal Rights Amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Clearly, a law that protects the “chastity” reputation of women but not men fails to meet that equal rights standard....

Sadly, some of the outrage against Limbaugh reflects the very same sexist notions embodied in the Florida law invoked by Allred, that the "chastity" of women is what makes them worthy.

Amen to that, and good catch on the Equal Rights Amendment language.  I frankly missed it.

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* As a side note, Hogan involved a man applying to an all women university so there is no question that the rule applies both ways—to laws that discriminate against men and women.  Indeed this was over a claim that this was a form of an affirmative action, to provide women a “room of their own” and so on.  This probably had a lot to do with the fact that the school in question was a school of nursing, not exactly a profession where women have faced discrimination and indeed one could easily argue that by encouraging women to be nurse and not doctors, Mississippi was not combatting sexism, but encouraging it.

Anyway, in Hogan the Supreme Court has made it pretty clear that there probably cannot be a single gender school, even if there is a separate but equal choice for the other gender.  The Virginia case was even easier because there wasn’t even a separate but equal school for women to match up with the then men-only Virginia Military Institute.

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Calling Bullshit on Ted Olson

In defending the recent ruling that apparently gay marriage is in the Fourteenth Amendment, and no one apparently discovered that for the first 142 years of its existance, former Solicitor General Ted Olson made the idiot comparison between freedom of speech and gay marriage:

Well, would you like your right to free speech, would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do?  These are fundament constitutional rights.  The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak.  It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.

First, every time someone says that it’s a throw-something-at-the-screen moment.  I am sick and tired of morons like Olson equating what is not reasonably in the constitution with what is obviously in the constitution.  Olson has made a great argument for amending the constitution, not making crap up in it.  The reason why the first amendment is not up for a simple majority vote is because someone has put it in the constitution. The claim that excluding gay people from marriage is unconstitutional doesn’t pass the laugh test.

Second, its funny you should stay that, Teddy boy, because do you remember a little case called McConnell v. the FEC?  In that case they made a facial challenge to McCain-Feingold on the theory that it suppresses freedom of expression.  A few years later the Supreme Court said the same law was unconstitutional precisely because it had that effect.  And guess who was on the side of the FEC and greater restrictions of expression in McConnel?  Then Solicitor General Theodore Olson.  As in you, dickhead.  You personally argued that congress could vote away our freedom of expression.  Indeed, if your arguments were accepted, Fox News, and indeed every news corporation would have been subject to direct federal regulation if congress only decided to do it.

So basically he tried to justify a ruling not supported by the constitution by citing a principle actually written in the constitution that he personally worked to subvert.

What a complete pile of bullshit.

(Source for quote, with slight correction.)

Why Kennedy Probably Won’t Invalidate Proposition 8—A Response to James Taranto

James Taranto today said that he felt that Kennedy was principled enough that he would invalidate Proposition 8.  I have to disagree.

First, Kennedy is not nearly as principled as Taranto imagines.  Yes, he seems reasonably principled in defense of freedom of speech, but in terms of his interpretive methods, not so much.  He joined Scalia’s opinion in Heller v. District of Columbia, which was an intensely originalist decision, determining how the Second Amendment would have been understood at the time it was ratified.  And this was no mere joinder for convenience; in oral argument, he talked about how the founders would have considered life without guns unthinkable.  He put on at least an act of caring what the founders believed.

Then along came Kennedy v. Louisiana.  In that case they were called on to determine whether the term “cruel and unusual punishment” included executing a person for forcibly raping a child.  And with apologies for being this explicit, but the Defendant in that case, also coincidentally named Kennedy, had raped his eight year old daughter so violently that it ruptured the wall between her vagina and her anus and she will never have children.  Read the case and, to Justice Kennedy’s credit, he does nothing to excuse or diminish the cruelty of the act.  So if Justice Kennedy was a principled follower of original intent this would be a no brainer.  At the time of the founding, we executed horse-thieves.  Killing a defendant like this scumbag is nothing compared to that.

But in fact (Justice) Kennedy declared it would be cruel and unusual to kill (Defendant) Kennedy for his crimes.  That decision came only a day before the decision in Heller, leading some of my more sarcastic friends to argue that Heller made Kennedy v. Louisiana moot.

The Secret Feminist Purpose of Section Two of the Fourteenth Amendment (Updated and Bumped!)

Speaking of apportionment and all that good stuff, there is also good reason to believe that Section Two of the 14th Amendment was designed to advance a feminist purpose.

No, your eyes aren’t fooling you.  I said a feminist purpose.

“But” I hear you say, “I was always told that Section 2 was the first time the word ‘male’ appeared in the constitution.  This was decried by feminists.  How could it possibly have a feminist purpose?”

Well, it’s given away when you look at how it might have functioned.  In truth, Section 2 never went into effect.  They literally never applied it, in large part because the Fifteenth Amendment mooted it two years later.  But if you think about how it operates, you start to see something very curious: it creates an incentive for racist white men to allow white women to vote.