Today in Supreme Court History: December 6, 1865

12/6/1865: The 13th Amendment is ratified.

Comments

[Dan Schiavetta]

Palko v. Connecticut, 302 U.S. 319 (decided December 6, 1937): Fifth Amendment’s prohibition of double jeopardy did not apply to the states (upholding Connecticut statute allowing prosecution to appeal a lesser-charge conviction so as to get retrial on more serious charge) (overruled by Benton v. Maryland, 1969)

Salman v. United States, 580 U.S. 39 (decided December 6, 2016): in prosecution under §10-b of Securities Exchange Act of 1934, jury could infer that source of information (here, as to potential mergers/acquisitions) received a personal benefit from the tip (this is necessary for conviction under §10-b) because he was brother-in-law of defendant (who made about $1.5 million trading on the information) even though source did not make any $ himself

Reich v. Collins, 513 U.S. 106 (decided December 6, 1994): Georgia Supreme Court can’t retroactively construe its statute allowing refund of illegally collected taxes so as to avoid refunding a tax on federal retirement benefits which had been declared unconstitutional (by Davis v. Michigan Dept. of Treasury, 1989)

[F.D. Wolf]

Reich v. Collins is part of the Court’s convoluted “intergovernmental immunity” jurisprudence. Georgia taxed the pensions of federal employees (and pretty much everyone else), but exempted the pensions of state employees. As you note, the Court struck down the same system in Michigan in 1989. The Court said you can tax both or exempt both, but you can’t just exempt state pensions. After that ruling, Georgia dropped the exemption for state employees. So, this case involved federal retirees trying to recoup the taxes they had previously paid on their pensions under a Georgia statute allowing for the recovery of “illegally collected” taxes. (I note, the tax had not been “illegal” per se, and was in fact still being collected [and is to this day, I presume], but the Supreme Court still presumed to reverse the Georgia Supreme Court’s interpretation of a Georgia law.)

The concept of “intergovernmental immunity” has its roots in the landmark case of McCulloch v. Maryland (1819). In Dobbins v. Commissioners of Erie County (1842), the Court ruled a state could not tax the income of a federal employee. In Collector v. Day (1871), the court ruled that the federal government could not tax the income of a state employee. But, finally, in Graves v. New York (1939), the Court said, enough of this nonsense, taxing a government employee is not the same as taxing the government, overruling those earlier cases and their like.

[Dan Schiavetta]

Thanks as usual for the helpful added information!

[Brett Bellmore]

Interestingly, if you apply that precedent to the position of some people on the Moore case, the federal government could just impose a 100% (Maybe 110%, just to rub salt on the wound.) tax on income derived from state employment, or maybe just for specific state jobs.

The maximalist interpretation of the 16th amendment really abolishes federalism, when you get down to it, because it empowers the federal government to destroy state governments in detail.

[Dilan Esper]

Palko is a really important case even now, because it sets forth the more liberal of the Court's two formulations of substantive due process- "implicit in the concept of ordered liberty".

The other, more conservative one, is from Snyder v. Massachusetts: "so rooted in our traditions so as to be fundamental".

Even now, substantive due process holdings vacillate between the two standards.

[apedad]

Re: Palko v. Connecticut

I'm always kind of mystified about incorporation and why it wasn't automatic or since Gitlow v. New York (1925), all subsequent questions about incorporation weren't automatic.

I mean 2A was only incorporated in 2009 with Heller!

[Dan Schiavetta]

Heller established the individual rights view of the 2A. It was McDonald which incorporated it.

As for the traditional collective rights view, on its face the 2A applies to the states anyway, because militias were state-formed entities upon which the security of the new nation depended.

[Brett Bellmore]

Heller didn't 'establish' the individual rights view of the 2nd amendment. It had been around since the amendment was adopted. It was the collective right view that was novel, having originated in the 20th century out of a need to rationalize the 2nd amendment away after the federal government started getting into gun control.

Indeed, look at Miller: He only prevailed in the first instance because the right was taken to be individual, and if the Court had held to the collective right view, they'd have decided the case quite expediently by simply noting that Miller wasn't in the formal or informal militia, being a felon.

But instead of asking if Miller was in the militia, they asked if the gun he was claiming a right to keep and bear was of a nature suitable for militia use. And simply decided that they hadn't been put on judicial notice that it was, (The case being a trial in abstensia...) and remanded for a determination on that point.

This is not the collective rights view, it's the individual rights view with a helping of "every terrible implement of the soldier"; The Court decided on the basis of having no evidence before it that a short barreled gun was such an implement.

[Dan Schiavetta]

Nobody agreed with your formulation. At least not until the gun industry started funding “research” in the 1980s.

One can argue whether a much-cited, foundational case really held what everyone says it held. We can play games with other well-settled questions too. After all, if you read Marbury v. Madison carefully you see that it does not concern the question of judicial review. But for years, look into any reference book and you would see that the 2A applies only to militia service and a cite to Miller. Which would not be a surprise to anyone who read the text of the 2A.

[Brett Bellmore]

"Nobody agreed with your formulation. At least not until the gun industry started funding “research” in the 1980s."

Look, captcrisis, I was born in the 50's. I think I'm pretty familiar with what people thought about the 2nd amendment before the 1980's. So at least try to come up with a semi-realistic conspiracy theory, will you? And, yes, you're spouting a conspiracy theory here. A conspiracy theory that requires a profound ignorance of the historical record to take seriously.

Also a profound ignorance of how small the firearms industry is, and of the relationship between it and gun owners...

I'd suggest you read Sandford Levinson's "The Embarassing 2nd amendment". Sandy doesn't LIKE the 2nd amendment, not one bit. He'd like to see it repealed. But he sure as hell wasn't paid by 'big gun' to notice that the collective rights theory had some real problems.

Or maybe you think Lawrence Tribe is on Colt's payroll? He'd long dismissed the individual rights interpretation of the 2nd amendment as nonsense. Then he decided to dig in and write the definitive refutation of it... only to find that the research he finally did didn't support his original position! He was not at all happy about the company he was forced to share.

[Dan Schiavetta]

Two outliers.

Levinson’s article didn’t come out until 1988 and even at that time was regarded as frivolous.

[Mr. Bumble]

Regarded as frivolous by whom?

[Brett Bellmore]

Committed gun controllers like Captcrisis, obviously.

Here you have two noted scholars, who’d defended the collective rights interpretation, dismissed the individual rights interpretation as vociferously as captcrisis. Then they bothered, at long last, to actually look at the evidence, and changed their minds.

They didn’t change their minds about wanting gun control, or thinking gun rights were awful. They didn't get a big check from the NRA. They changed their minds about what the 2nd amendment actually meant, accepted that it didn’t mean what they’d wanted it to, because they had finally bothered looking at the evidence.

What happened in the 1980s was not that the evidence changed. What happened is that the issue became salient enough that people who’d just been spouting the ‘common wisdom’ (Among academics, and only among them!) bothered to look at it.

[apedad]

This George Will article from 1991 talks about Levinson's book: https://www.tampabay.com/archive/1991/03/21/the-embarrassing-2nd-amendment/

[Mr. Bumble]

Pay walled.

[apedad]

(Huh, I can get it for some reason.)

The embarrassing 2nd Amendment
By
GEORGE F. WILL
Published March 21, 1991|Updated Oct. 13, 2005

Two staggering facts about today's America are the carnage that is a consequence of virtually uncontrolled private ownership of guns, and Americans' toleration of that carnage. Class, not racial, bias explains toleration of scandals such as this: More teen-age males die from gunfire than from all natural causes combined, and a black male teen-ager is 11 times more likely than a white counterpart to be killed by a bullet. If sons of the assertive, articulate middle class, regardless of race, were dying in such epidemic numbers, gun control would be considered a national imperative.

But another reason Americans live with a demonstrably disastrous gun policy is that the subject was constitutionalized 200 years ago in the Second Amendment: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Many gun control advocates say the amendment obviously provides no protection of individuals' gun ownership for private purposes. They say it only provides an anachronistic protection of states' rights to maintain militias.

However, Sanford Levinson of the University of Texas Law School says that is far from obvious. In a Yale Law Journal article, "The Embarrassing Second Amendment," he makes an argument that is dismaying to those, like me, who favor both strict gun control and strict construction of the Constitution.

The Second Amendment is second only to the First Amendment's protections of free speech, religion and assembly because, Levinson argues, the Second Amendment is integral to America's anti-statist theory of republican government. That theory says that free individuals must be independent from coercion, and such independence depends in part on freedom from the menace of standing armies and government monopoly on the means of force.

In the most important Supreme Court case concerning Congress' right to regulate private gun ownership, the court, upholding the conviction of a man who failed to register his sawed-off shotgun, stressed the irrelevance of that weapon to a well-regulated militia. Gun control advocates argue that this lends no support to a constitutional right to ownership for private purposes.
But Levinson notes that the court's ruling can be read as supporting extreme anti-gun control arguments defending the right to own weapons, such as assault rifles, that are relevant to modern warfare.

The subject of gun control reveals a role reversal between liberals and conservatives that makes both sides seem tendentious. Liberals, who usually argue that constitutional rights (of criminal defendants, for example) must be respected regardless of inconvenient social consequences, say the Second Amendment right is too costly to honor. Conservatives who frequently favor applying cost-benefit analyses to constitutional construction (of defendants rights, for example) advocate an absolutist construction of the Second Amendment.

The Bill of Rights should be modified only with extreme reluctance, but America has an extreme crisis of gunfire. And impatience to deal with it can cause less than scrupulous readings of the Constitution. Whatever right the Second Amendment protects is not as important as it was 200 years ago, when the requirements of self-defense and food-gathering made gun ownership almost universal. But whatever the right is, there it is.

The National Rifle Association is perhaps correct and certainly is plausible in its "strong" reading of the Second Amendment protection of private gun ownership. Therefore gun control advocates who want to square their policy preferences with the Constitution should squarely face the need to deconstitutionalize the subject by repealing the embarrassing amendment.

[Mr. Bumble]

Thanks. FYI I started to read it at the link but before I could finish a message popped up telling me I had reached the limit of free stories.

[apedad]

As I've said before, every bullet used in a mass shooting is just another step towards, ". . . .repealing the embarrassing amendment."

[Bob from Ohio]

"another step towards, “. . . .repealing the embarrassing amendment.”"

Good luck. Gun sales keep setting records, now even Jews are buying.

The idea that you can get 2/3 of Congress and 3/4 of the states to repeal it is utterly delusional.

[Mr. Bumble]

Which is why the hope is that somehow the SC will do the jib.

[Brett Bellmore]

"The idea that you can get 2/3 of Congress and 3/4 of the states to repeal it is utterly delusional."

That's why they want to get 5 Justices, (Or maybe 7, in a packed Court.) to just make it go away by tendentious interpretation.

So, " every bullet used in a mass shooting is just another step towards" repeal?

I guess that means every extortion note is just another step towards repealing the 1st amendment. And every criminal freed because of an unconstitutional search is a step towards repealing the 5th...

[Z Crazy]

The whole collectiver rights interpretatioon of the bill of civil rights is a good idea.

why should they apply to civilian life at all?

I mean, why shouldn't the first amendment only protect the right to petition your chain of command while serving in the militia?

Why shouldn;'t the third amendment mean that the militia can't just kick you out of your barracks so a general could sleep there?

Why shouldn't the fourth amendment only mean the gunny needs a good reason to search your foot locker.

Why shouldn't the fifth amendment only mean the right to a fair court-martial if accused of breaking regulations?

Why shouldn't the sixth amendment only guarantee trial by jury in a court-martial?

why can;'t the eighth amendment only mean you can only be flogged at most seven times.

Why can't the ninth amendment only protect rights historically recognized to belong to soldiers?

We'd be safer with a collective rights interpretation.

[Brett Bellmore]

"I mean, why shouldn’t the first amendment only protect the right to petition your chain of command while serving in the militia?"

Because it's all about protecting the government's printing house in Pueblo, CO, 'natch.

[Brett Bellmore]

It's true that the Constitution looks like the work of a committee. Possibly because it was?

The way the preface of the 2nd amendment was interpreted, prior to the middle of the 20th century, was that it was a right of individuals to military arms.

Tench Coxe on the topic

During the debate over ratification of the Constitution, Cox wrote that the new government was no threat, because Americans were armed.

"The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible.Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the
soldier, are the birthright of an American. What clause in the state or [federal] constitution hath given away that important right .... [T]he unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people."

Note that he was denying that either federal OR state governments were allowed to disarm the people, that being armed was a right already, that the new Constitution couldn't take away.

Speaking of the amendment, (And thanked by Madison for his help, Cox wrote, "As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."

We have a lot of evidence from the founding era of this nature, demonstrating that it was a right to military arms, but a private right to them. Americans are supposed to be armed comparably to soldiers.

[Dan Schiavetta]

Frankfurter derided step-by-step incorporation as “the slot machine theory — some are in and some are out”.

The Bill of Rights, added to insure ratification, were (mostly) restrictions on what the federal government could do. Currently I can think of only two that still haven’t been applied to the states: the Seventh Amendment right to a jury trial in certain civil cases, and the requirement of a grand jury indictment (Fifth Amendment).

[The Margrave of Azilia]

I think it’s a popularity contest. Most of the Bill of Rights are cool, but grand juries and civil juries aren’t.

Grand juries are regarded as an appendage of the prosecutor – a self-fulfilling prophecy IMHO. If the Supreme Court wrote an eloquent incorporationist opinion emphasizing the importance of grand juries to protect innocent suspects, I would anticipate that the reverberations would echo throughout the system and we’d have more prosecution-skeptical grand jurors and fewer ham-sandwich indictments.

[Area Man]

The Supreme Court has never incorporated the Third Amendment (though, the Second Circuit has) or the Sixth Amendment's Vicinage Clause. As for the Vicinage Clause, I'm not aware of any court that has incorporated it, though I know many have declined to do so. I think that's a mistake, but then again, I think it's a mistake to not incorporate the first eight amendments in their entirety.

Also, the Eighth Amendment's Excessive Bail Clause has not technically been incorporated by the Supreme Court. The Supreme Court said it was incorporated in dicta, but the issue has never been directly before the Court. I can't, however, imagine a situation where it wouldn't be incorporated. And, of course, most, if not all, of the states already prohibit excessive bail.

[Brett Bellmore]

Originally the 14th amendment was supposed to incorporate amendments 1-8 against the states, as well as traditional 9th amendment rights.

Speech introducing the 14th amendment to the Senate.

"It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. ... But we may gather some intimation of what probably will be the opinion of the judiciary by returning to a case adjudged many years ago in one of the circuit courts of the United States by Judge Bushrod Washington of the Supreme Court; and I will trouble the Senate but for a moment by reading what the very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield v. Coryell."

Judge Bushrod: "What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”

Such is the character of the privileges and immunities spoken of in the section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances; a right appertaining to each and all of the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. . . "

But the Court put a stop to that in the Slaugherhouse case, essentially mooting the P&I clause.

Incorporation via 'substantive due process' was a much more discretionary thing for the Court, they could pick and chose which amendments they did and didn't like. It also distorted the original intent of the 14th amendment, because while everybody had a right to due process, only citizens were entitled to privileges and immunities.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL and I'm sure no fan of government, but Slaughterhouse has always struck me as bizarre. It was clear to both sides, pro and con, that the 14th would apply the Bill of Rights to the states, and the Supreme Court just put its fingers in its ears and said "Nope".

[Brett Bellmore]

Even more bizarre, if you ask me, is that when the Court was finally ready to start enforcing the 14th amendment, they didn't just overturn the Slaughterhouse case, and restore the P&I clause to functionality. I suppose because Slaugherhouse was about economic rights, (Which were just as real as other rights at the time.) and that would have been, (shudder!) Lochnerism.

[Bob from Ohio]

Speeches are not part of the Constitution.

[Brett Bellmore]

Speeches introducing constitutional amendments are damned well evidence as to their meaning, though.

[Bob from Ohio]

No, only the words are "evidence as to the meaning" of the amendment.

If he wanted incorporation, he should have drafted it accordingly.

[Sarcastr0]

Evidence, but not proof.

That being said, it is well established that the Slaughterhouse cases were a departure from the Constitution in a lot of ways - intent of the framers, past precedent, even current meaning.

But it does not follow that the cure for that is to 150 years later topple our current jurisprudence to retcon into something that is more historically perfected.

Not worth the transition cost. Accept it was wrong and move on to deal with the law as it is.

[Brett Bellmore]

It would have been worth it at the time of Brown, since they were already out to toss Jim Crow on the scrap heap of history. Why do a half-assed job of it?

Well, several reasons for half-assing it.

1) Slaugherhouse was about economic rights, so reversing it would have been Lochnerism. Can't have that!
2) It's embarassing to admit that a past decision of the Court wasn't just mistaken, but deliberately wrong. Even if children in history courses are already being taught that it was.
3) "Substantive" due process let them pick and chose what they'd incorporate, and on what basis. Who doesn't like ordering ala carte?

[Sarcastr0]

Brown seemed to do it's job just fine.

And our current Constitutional jurisprudence encompasses economic and civil rights just fine.

Incorporation is not formally baked into P&R either.

And *embarrassment*? LOL that's your formalistic self; most other people are pretty proud of our Constitutional system. Not even Scalia was that formalist.

Bottom line, there is no functional upshot other than Constitutional chaos. Which I suppose you might game out as aligning more with your out-there desires than where we are now, but that isn't even established.

[Brett Bellmore]

"And our current Constitutional jurisprudence encompasses economic and civil rights just fine."

Well, if you're inclined to think the routine violation of economic rights is just fine, sure.

[Sarcastr0]

So you want to retcon 150 years of jurisprudence because you think that would be the silver bullet instantiating your vision for our Constitution.

Ignoring how awful a dystopia a society that protects only economic rights would, there is nothing saying P&I is economic only.

That's sillier as those who think repealing the 17A would do it. You want massive change, this is massive change, so you want this.

[Brett Bellmore]

I want to retrocon 150 years of jurisprudence because the Slaugherhouse Court got the meaning of a major constitutional amendment radically wrong, everybody knows it, and it has been distorting our jurisprudence ever since.

And that's what you're supposed to do with big and consequential mistakes: Fix them. Not keep building up one layer of law after another around them like some obscene pearl.

"Ignoring how awful a dystopia a society that protects only economic rights would, there is nothing saying P&I is economic only."

That's right, there's nothing saying that, literally nobody here is saying that. Did you somehow take me as saying that?

I said that one of the reasons the Supreme court couldn't bring itself to simply overturn Slaughterhouse is that the Slaughterhouse case, specifically, was about economic rights: It was about a local monopoly on running slaughterhouses, and the argument was that it was a violation of the P&I clause to make it illegal for people other than the monopolist to engage in that business.

So directly overturning Slaughterhouse means reviving economic rights, too. It would be Lochnerism, and as we all know, one of the fundamental laws of constitutional interpretation these days is that Lochner was wrong, and anything that implies it wasn't wrong must also be wrong.

That doesn't mean that the P&I clause is only about economic rights. It's ALSO about economic rights, because economic rights were considered as just as important as other rights at the time the 14th amendment was adopted, it was supposed to protect them, TOO.

[Sarcastr0]

You're treating this like engineering. It is not that.

An imperfection in our ideological edifice is not going to cause the whole thing to collapse; institutions don't work like that.

And retconning is in no way costless.

So what you have is a high-cost ask for a benefit of making you happy because it's not got any historical contradictions in it...until the next one.

The precedent of the Slaughterhouse Cases are well beyond the specific facts of the case. You're essentializing that the facts were economic; that's not what the upshot would be.

As to your loving Lochner...historical revisionism aside, it was a race to the bottom for labor.

We have demonstrated history that was an unfree time for most Americans. But hey it's formalistically true they had theoretical economic choices to work or starve!

Politics is more than economics. Constitutional rights are well beyond economic, and when the conflict economic rights sometimes lose and sometimes do not.
And our society, so balanced, is a much better place.

Your ideology has blinded you to history.

[Commenter_XY]

Thirteenth Amendment

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.

[Randy Sax]

My proposal for the 28th amendment;

Section 1
Neither slavery nor involuntary servitude 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.

[John F. Carr]

There was a lot of buzz about removing the prison labor exception a few years ago, but it faded away after Colorado Amendment A passed in 2018.

[Mr. Bumble]

Although it no longer exists and I doubt (and hope) that it would never be necessary, would the draft be considered involuntary servitude under current law?

[John F. Carr]

Conscription is not slavery. Arver v. United States, 245 U.S. 366 (1918),

[Brett Bellmore]

There sure were serious claims when they first imposed it during the Civil war that it was slavery.

[F.D. Wolf]

Since the Colorado amendment, Alabama, Nebraska, Utah, Oregon, Tennessee, and Vermont have likewise removed the prison labor exception from their constitutions. It is on the November 2024 ballot in Nevada.

[Brett Bellmore]

It's not, technically, a "prison labor exception", though that is the most common application. Under the 13th amendment, you could literally sentence somebody to slavery as a result of conviction, and sell them to the highest bidder.

It's been a long time since that was actually done, so far as I know, but it IS constitutional to do it.

[F.D. Wolf]

I concede your historical point, though I strongly suspect, in the extremely unlikely event that a state today attempted to impose "slavery" as a sentence for a crime, that the courts would strike it down as a violation of "due process" under the Fourteenth Amendment, even though such a sentence is apparently permitted by the Thirteenth.

[Brett Bellmore]

The problem is that, for any crime horrific enough that a court of appeals might be tempted to uphold the sentence, you'd likely regard forced labor outside the context of a prison as too dangerous to the public. Though it might be that you could sentence somebody to military service, and get away with it.

[loki13]

The Thirteenth Amendment- beloved by cranks and “real libertarians” (but I repeat myself) who claim that just about everything violates it, because anything they disagree with is slavery, man.

[Brett Bellmore]

Lots of things I don't like aren't slavery. But the case for requiring somebody to provide service, involuntarily, being involuntary servitude?

I think that just get rejected because accepting it would be inconvenient.

[Sarcastr0]

Society involves doing stuff you don’t want to do *all the time.* Sometimes even due to government laws and regs. Compliance is all about doing stuff you don't wanna do because the government says you gotta.

It’s not papered over due to inconvenience, it’s that despite your semantic formalism people do not think of doing stuff they would prefer not to do as slavery. Not when they're past about 17 years of age.

Same as when you're good with shooting thieves because they're stealing money which costs time and thus life. Logically consistent; utterly out to lunch.

[Brett Bellmore]

Interesting notion, that you establish you're not out to lunch by being proudly logically inconsistent.

[Sarcastr0]

It's more that I proudly do not demand logical consistency from human endeavors. It is a good aspirational goal, but getting salty that humans are not robots is just a recipe for misery.

[Defenderz]

Ratifying the 13th Amendment was the right thing to do, but the 14th was not. Rather, former slaves should have been either repatriated back to Arica or given their own land on the American continent.

I'm sure it would have been as successful as Haiti.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What good would it do to have their own land if the states could just take it from them because they had no rights?

[Mr. Bumble]

Like we've done to the Indian nations?

[Defenderz]

And they're drunk wife beaters.

Time to realize that some people have worse DNA.

[Dr. Ed 2]

That's upbringing, not genetics.

[Defenderz]

No it's not.

[Defenderz]

U.S. law wouldn't apply if it was their own land. The 14th would have only conferred them rights in the U.S.

[Brett Bellmore]

That was Lincoln's preferred solution to race relations. Curiously enough, black people who were born in the US weren't particularly eager to be deported to a land they'd never known. Go figure.

[Defenderz]

And they're not particularly eager to fit in and conform to white American standards either. They always see themselves as outsiders, and never stop demanding our money. Go figure.

[Brett Bellmore]

I have to point out to you that I live in a mixed race neighborhood, a quiet bedroom community outside of Greenville SC. I think the majority of people on my street are black.

I'm having a hard time squaring your description with the behavior of my neighbors. and the local low crime rate that attracted me to this neighborhood.

For historical path dependence reasons, blacks were disproportionately in a position to take severe cultural damage from 'the war on poverty', and it shows. But whites who were similarly positioned exhibit just as destructive a culture. While blacks who avoided it have, in my experience, perfectly ordinary American standards.

[SRG2]

Haiti has suffered from generations of French and US governments being determined to show that self-liberated (black) slaves couldn't effectively govern. and so did everything in their powers to undermine it.

[Bob from Ohio]

Only whites have agency, brown people have none.

[SRG2]

This is a matter of the historical record. The issue was not blacks lacking agency but whites thwarting it.

[Bob from Ohio]

"historical record"

Your motive [determined to show that self-liberated (black) slaves couldn’t effectively govern] for US and French meddling is mere opinion.

The Dominican Republic shook off the Spanish in 1821 though Haiti helpfully invaded them right afterwards. The Dominican Republic is in decent shape.

All of this end decades ago in any event. Haiti's current condition is their fault, not what Charles X did in 1825.

[SRG2]

DR was not freed via a slave revolt. Haiti was. That set a really bad precedent that neither France nor the US could countenance.

[Bob from Ohio]

150+ years ago even if your interpretation is right.

[SRG2]

They continued to interfere more recently than 150+ years ago.

[Bob from Ohio]

No more than dozens of other places.

"supporting the coup in 1950 to providing aid to Papa Doc"

Coup 73 years years ago and Papa Doc died in 1971.

We supported coups and dictators in plenty of places. Haiti is uniquely bad [at least in the Americas] due to their own efforts.

[Rev. Arthur L. Kirkland]

.

Haiti is uniquely bad [at least in the Americas] due to their own efforts.

Much like West Virginia and rural Ohio?

[Nige]

People who venerate the Consitution declaring that history has no effect on the present.

[SomeGuy 2]

Neither the US or France have done anything to undermine Haiti in a long time. France doesn’t care that much, the United States is at most trying to make sure Haiti doesn’t export its misery and dysfunction– last thing it wants is a bunch of Haitian refugees who will show up and immediately go on the dole. Haiti has agency and has made terrible decisions. Nobody made them elect Papa Doc and almost everything since then has either been (i) their own damn fault or (ii) an act of nature. Haiti could be a tourist destination like Aruba, Jamaica, or the DR, it just refuses to get its act together, something almost entirely attributable to the locals.

[SRG2]

Neither the US or France have done anything to undermine Haiti in a long time.

Certainly played around in it - from supporting the coup in 1950 to providing aid to Papa Doc - gotta lurv those anti-Communist dictators. Hell, the South still hasn't got over losing episode 1 of the Civil War so clearly historical influences persist for far longer than you seem to credit.

[SomeGuy 2]

It's true that the US formed alliances and gave aid to various Haitian governments, but it does that with a lot of governments. We give aid to Taiwan, that doesn't mean we micromanage Taiwan's politics.

[Mr. Bumble]

"...last thing it wants is a bunch of Haitian refugees who will show up and immediately go on the dole. "
You don't think that's already the case?

[SomeGuy 2]

We can at least limit the damage and make sure there's a regime in place that will take their own nationals back if deported. Separately, by the way, it's insane we tolerate nations that refuse to take back their own nationals and just leaves us stuck with them.

[Sarcastr0]

'I may have cut off your arms, but that was like a decade ago; at this point your lack of upper body strenghth is your own fault.'

The past isn't dead. It isn't even the past.

[Brett Bellmore]

The argument to the contrary is that the consequences of historical wrongs eventually go away, in the exact way limbs don't grow back. It's more like a haircut than decapitation, in that way.

You need more than having been set back a very long time ago to explain being in a bad place today. You need to explain what's keeping you in that bad place, when people worse off have gotten out of it.

[Sarcastr0]

Your definition of eventually is a very short amount of time when it comes to nations.

I'm sorry you think we should ignore stuff just based on your vibe that it was long ago, but historians disagree.

[Brett Bellmore]

I'm saying don't obsess about it: If somebody did a country wrong last year and they're in a bad way today, it's on that somebody.

If somebody did a country wrong a half century ago, and they're still in a bad way today? That's mostly on them.

[SomeGuy 2]

The past is dead. I know there's this root cause fairy mode of leftist thinking that means it never does; if so then fine, it seriously. All our choices were made for us when homo sapiens first arose 300,000 years ago. Since then, we've just been reacting to root causes. To the extent that people and nations are responsible for their own actions, then Haiti is responsible for its own actions. To the extent they're not, then you can't be irate at the United States or France; they were merely reacting to past incidents.

[Sarcastr0]

This kind of historical determinism sounds like Marx, but dumber.

[SomeGuy 2]

? You’re the one who thinks the choices of Haiti and Haitians are somebody else’s fault. I’m merely showing your argument is fallacious by demonstrating it proves too much. On, put another way, if Haitians aren't responsible for their own actions then why the hell would American and French people be responsible for their own actions? Of course, the grievance industry goes a step farther than even that; Haitians aren't responsible for their actions, but French/Americans are responsible for the actions of Haitians.

[Sarcastr0]

Cause and effect existing generationally does not mean everything is clockwork. Humans have agency even when it is constrained.

But condemning a country that had it's development just shredded is missing a lot of history.

[Rev. Arthur L. Kirkland]

What's your opinion concerning West Virginia, Mississippi, Arkansas, Alabama, rural Ohio, central Pennsylvania, Oklahoma, Idaho, Wyoming, Montana, Louisiana, South Carolina, Tennessee, and Kentucky, SomeGuy2?

Are those knuckle-dragging, superstitious, half-educated, bigoted, gullible, dysfunctional losers responsible for their situation?

Should better Americans subsidize those conservative parasites?

Thank you.

[Brett Bellmore]

Somewhat more than that. Even in the highest crime areas, you could say that much.

Blacks, like every group, are not a cultural monolith. There IS no "black culture", there are a bunch of different cultures in the country, and you can find blacks who are members of pretty much all of them.

It's just that blacks are, unfortunately, disproportionately members of some really, REALLY dysfunctional cultures. But the whites who are members of those same cultures are no prize, either. And blacks who are members of more functional cultures are no worse than white members of them.

[Defenderz]

You are ignoring the fact that otherwise respectable members of that group randomly explode into violence all the time. They're genetically inferior. There's just no other way to say it.

[Rev. Arthur L. Kirkland]

At the Volokh Conspiracy, racists are welcome to fly their bigoted, right-wing flags without fear or constraint!

Carry on, clingers. So far as better Americans permit, that is.

[Brett Bellmore]

I guess my mute list grows by one.