I realize that sometimes there might be strong evidence that the
chief purpose for an enactment was to hurt some racial group; as I
understand it, that's what Hunter v. Underwood involved. But I think we
should be cautious about invalidating or even rejecting laws that have
racial motivation as part of the original purpose -- not unlikely in a
racist time.
If, for instance, some rape laws were made tougher in the early
1900s in part because of paranoia about blacks supposedly raping white
women, it doesn't follow that those laws should be invalidated today.
Likewise, my friends at the Institute for Justice have long claimed that
part of the motivation for the Davis-Bacon Act was a desire to shut out
black workers who were excluded from unions. According to one friendly
review of my friend David Bernstein's book, "The Davis-Bacon Act (1931)
. . . can be traced to an incident in which a crew of black workers from
Alabama was imported to build a Veteran's Bureau hospital in Congressman
Robert Bacon's Long Island district. Bacon's objection to the arrival of
these workers was the genesis of a bill that required, and continues to
require, the government to pay workers on all federal construction
projects the 'prevailing' local wage-where 'prevailing' means union. The
act greatly strengthened construction unions, allowing them to compete
against lower-paid black workers and to reinforce provisions barring
black workers from most building trades unions. Ironically, considering
that Davis-Bacon was ostensibly passed to protect local workers, unions
had the power to insist that employers bring in union labor from distant
places rather than hire local nonunion African Americans. Many observers
believe that the Davis-Bacon Act helps substantially reduce black
employment in the construction industry to this day."
http://www.theihs.org/libertyguide/hsr/hsr.php/63.html
I'm not a historian of these laws, so perhaps the charges
against the Davis-Bacon Act are mistaken, and there was no racial
motivation at all for it. But many laws enacted in racist eras were
done so in part for racist reasons. When unions were whites-only, and
many in the union movement (and outside it) were racists, it's quite
plausible that many pro-union laws would have had a tinge of anti-black
sentiment behind them as well. This doesn't necessarily make the laws
wrong today, or unconstitutional today.
Eugene
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Lloyd Mayer
Sent: Wednesday, February 09, 2005 9:44 AM
To: election-law@majordomo.lls.edu
Subject: RE: NY Times and Felons
Jonathan Gass wrote:
"As Frank Askin pointed out, felon disenfranchisement in
operation dilutes black voting (which, from my admittedly
fragmentary knowledge of the reasons why felon
disenfranchisement laws were adopted in the first place, is
hardly coincidental)."
Has anyone studied the degree to which felon
disenfranchisement laws were adopted in order to dilute black
or other minority voting?
Lloyd H. Mayer
Caplin & Drysdale, Chartered
One Thomas Circle, NW, Suite 1100
Washington, DC 20005
tel: 202-862-5056; fax: 202-429-3301
lhm@capdale.com; www.caplindrysdale.com
<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -> This message is for the use of the intended recipient
only. It is from a law firm and may contain information that
is privileged and confidential. If you are not the intended
recipient any disclosure, copying, future distribution, or
use of this communication is prohibited. If you have
received this communication in error, please advise us by
return e-mail, or if you have received this communication by
fax advise us by telephone and delete/destroy the document.