On Wed, 9 Feb 2005 14:32:32 -0800, "Volokh, Eugene"
wrote:

	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.

Let's assume this about the Davis-Bacon Act:  the vast
majority of Congressmen who voted for it, and President
Roosevelt who signed it, did it to keep blacks out.

I see a number of differences between this and felon
disenfranchisement laws that were enacted for racial
reasons.  The most obvious is that such laws *still*
have a vastly disproportionate effect on minorities
today, which I doubt is the case with Davis-Bacon. 
This point has nothing to do with whether blacks are
arrested, charged, etc. out of proportion to the number
of crimes they actually commit.  The fact that blacks,
and black men in particular, are hugely more likely
than other citizens to have felony convictions--for
whatever reason--means that if you disenfranchise
felons, you inevitably underrepresent black communities.

Which was the racists' goal, of course.

One might embrace Davis-Bacon in spite of the bad
motives of its enactors on the grounds that, as it now
operates, it no longer serves racist ends but has (as
pro-union folks might think) laudable effects.  I find
it much more troubling to continue enforcing provisions
that were enacted to disenfranchise blacks, that have
served that purpose quite effectively for a century and
a half, and that show no sign of shedding their
racially disparate effect.