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Let's re-fight the Civil War and the Civil Rights movement!

― Tad (llamasfur), Friday, 13 December 2002 22:48 (twenty-two years ago)

The title is facetious, but my goal is serious. There are honorable arguments to be made in favor of states' rights -- or, "conferalism," if you prefer. The idea itself isn't racist (though in practice, of course, that is what it has come to mean in American politics).

I tend to come down much more on the Hamiltonian (i.e., prefer a stronger federal government) than Jeffersonian (i.e., prefer stronger state governments) side myself. But I am willing to hear the other side.

― Tad (llamasfur), Friday, 13 December 2002 22:52 (twenty-two years ago)

*paraphrasing* - "but of course one can burn a cross in the sanctity of one's bedroom!" - Justice Scalia, yesterday, in that silly up-for-appeal case which has Virginia questioning whether kkk iconography is like, bad, or not-that-bad

― Vic, Friday, 13 December 2002 22:54 (twenty-two years ago)

I dunno, Vic, that's a simplistic way of putting it. And Scalia's arguments were squarely in favor of the state's right to forbid public cross-burning, as were -- yes, he actually talked! -- Clarence Thomas's. The question was basically cross-burning as protected speech versus cross-burning as an inherent threat or provocation, and the conservative wing of the court was well on the latter side. As I think is correct: any argument for cross-burning as a form of speech depends on its having a specific historical meaning and symbolism, and it's impossible to claim that without also acknowledging that it has a specific historical symbolism of threat and intimidation. If you ignore the historical "meaning" it carries you have to ignore both sides of it -- which would make cross-burning just a vacant meaningless action, like burning leaves, which is fully open to regulation by the state.

I'm sorry, were we talking about state's rights?

― nabisco (nabisco), Friday, 13 December 2002 23:06 (twenty-two years ago)

Tad, very very interesting thread!

December 13th, 2002! WASHINGTON, DC -- America pass stronger state governments, and less federal governing.

Ok, what happens?

Well, all those smaller cities near state borders that depend on the greater metro city across the state line will probably be shivering a little more... examples: Vancouver, WA ; Pullman, WA ; Menomonie, WI ; Moorhead, MN ; Kansas City, KS ; etc.

more later...

― donut bitch (donut), Friday, 13 December 2002 23:41 (twenty-two years ago)

I wasn't aware that states rights had been wedded with racism in the minds of the US public. In fact, I've heard the "states rights" issue being brought up in quite a different context of late (ie. so-called "protection of marriage" bills passed by certain states which may or may not violate the full faith and credit clause).

re: the freedom of speech v. freedom of fear issue: I was actually quite concerned to hear so many people agreeing with the idea that speech-acts can have an inherent historical meaning. Not, of course, that I have any personal desire to go out and burn crosses (except, perhaps, in a purely iconoclastical context) but because such an argument seems to be a slippery slope that could lead to the banning of all kinds of demonstrations.

― , Friday, 13 December 2002 23:48 (twenty-two years ago)

(ie. so-called "protection of marriage" bills passed by certain states which may or may not violate the full faith and credit clause)

Trust me, they don't. I could go into a detailed explanation as to why, but anybody who tells you that marriage has anything to do with Full Faith and Credit just hasn't done the research.

― J (Jay), Saturday, 14 December 2002 00:09 (twenty-two years ago)

BTW, what's most interesting about the position Scalia adopted at the Virginia v. Black oral arguments is that it directly contradicts the position he took in R.A.V. v. St. Paul, 505 U.S. 377 (1992). In that case, Scalia (writing for a majority of five justices) held while the state can enact a statute that regulates only threats, it cannot pass a statute that regulates only those threats that include offensive political messages. See id. at 388-89. Thus, the question isn't whether Virginia can regulate threatening cross-burning at all, it's whether Virginia can pass a statute that specifically regulates only cross-burning.

Did that make sense?

― J (Jay), Saturday, 14 December 2002 00:17 (twenty-two years ago)

I'd rather live in California than in the United States. Our version of federalism gives a ridiculous amount of power to states where no-one actually lives. Why should a bunch of idiots in Washington DC or North Dakota or Mississippi have any say at all over how I live? What's in it for me? What exactly is the argument against states rights? Hamilton must've believed in free markets; why shouldn't states compete with each other? The physical distance between Berkeley and Washington DC is almost the same as the physical distance between Jamestown and London. I'm living in an occupied territory!

― Kris (aqueduct), Saturday, 14 December 2002 00:22 (twenty-two years ago)

And, back OT, I think that as a concept "states' rights" is a hoax, and the Rehnquist Court's 'federalism' cases have done little to revive a doctrine that died when the North won the civil war and started spinning in its grave when the New Deal was proposed. The U.S. is not a confederacy, if it ever was (take that, Trent Lott!). The world keeps getting smaller and the differences between state cultures become less and less significant. In 1850, "state's rights" meant that South Carolina could nullify any federal law that infringed on its rights-in regards to taxation, slavery, whatever. These days, it means that you can't sue a state government for patent violations and you can't sue your rapist in federal court. Not quite the same thing in my book.

― J (Jay), Saturday, 14 December 2002 00:29 (twenty-two years ago)

And Scalia's arguments were squarely in favor of the state's right to forbid public cross-burning

Oh, I know they were. I just wanted to paraphrase that since the word-usage was so byootiful. I mean, really, if you had to choose one-indoor-cross-burnin'-location, wouldn't you choose the pantry or basement instead than a, um, bedroom? I guess it was the usual using-religious-iconographic-images-in-a-blasphemous/occult-way-to-invoke- sex-with-da-love-demon-Lucifer train o thought won out over pracicality, once again.

Back to our original programming...isn't some state (I believe Texas)trying to tamper with its current sodomy laws?

I'd rather live in California///What exactly is the argument against states rights?

Cowboys may not be "legally" allowed to phuck whereas WeHo residents can have as many orgies as they want? Arbitrary, arbitrary...again, I probably am being too simplistic, but my only excuse is that I am still a) in this library and b) awake.

― Vic, Saturday, 14 December 2002 01:07 (twenty-two years ago)

Lawrence v. Texas has been granted certiorari and is an attempt to overturn Bowers v. Hardwick, a case holding that anti-sodomy laws are acceptable. Lawrence is a little different in that the statute at issue only bars sodomy between males, and thereby might be overturnable on equal protection grounds.

― webcrack (music=crack), Saturday, 14 December 2002 01:22 (twenty-two years ago)

isn't the problem with states' rights that it was previously used to do things that were (according to current thought) unconstitutional? states' rights don't mean you can overrule the constitution. other than that, it's a nice idea.

― Maria (Maria), Saturday, 14 December 2002 02:47 (twenty-two years ago)

But Vic, I thought Scalia's line was sort of meant to be ridiculous? I.e., the bedroom is shorthand for private space => "no one is restricting your right to burn a cross, if you really think you can cook up a way to do it non-publically."

J, I might be misunderstanding the statutes involved. I was under the impression the court had previously struck down a law that barred a few types of speech (including cross-burning) because it specifically listed those forms of speech; the Virginia one ran around that problem by restricting the speech only insofar as it carries threat or intimidation. (Is that right?) So I thought the question was whether cross-burning inherently carried that threat. (In the case of at least one of the instances being considered this was purely a theoretical issue: the people involved were trying, and failing, to light up a cross across from an interracial couple's home, which puts them in the threat-and-intimidation league no matter how you cut it.)

― nabisco (nabisco), Saturday, 14 December 2002 03:10 (twenty-two years ago)

I was under the impression the court had previously struck down a law that barred a few types of speech (including cross-burning) because it specifically listed those forms of speech; the Virginia one ran around that problem by restricting the speech only insofar as it carries threat or intimidation. (Is that right?)

Well, that's one of the arguments that Virginia is advancing in an attempt to distinguish R.A.V.. However, if you look at the reasoning in that case, I think you'll find that argument has pretty weak legs.

Specifically, the R.A.V. ordinance singled out "a burning cross . . . which one knows or has reason to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guily of a misdemeanor." While the R.A.V. majority spent a lot of time criticising the phrase that I've italicized, the rule that they adopted would appear to invalidate any law that attempted to bar a specific message. The Virginia statute, as we've discussed, outlaws cross-burning with the intent to intimidate the question (at least as it relates to R.A.V.) is more whether cross-burning inherently carries a message of racial superiority, rather than whether cross-burning carries an inherent message of intimidation.

There's another issue about whether the statute is overbroad because it contains a presumption that all cross-burning is done with the intent to intimidate, which I believe is what you're referring to.

― J (Jay), Saturday, 14 December 2002 13:42 (twenty-two years ago)

Yeah, that's the part I agree with: cross-burning isn't "speech" apart from its historical symbolism, and that historical symbolism is inseparable from notions of racial superiority and intimidation. I don't see how you can claim the history of "speech" but deny the other half.

― nabisco (nabisco), Saturday, 14 December 2002 19:05 (twenty-two years ago)

I don't see how you can claim the history of "speech" but deny the other half.

Funny, that's the part I disagree with the most! It seems to me that the symbol of a burning cross can have a number of meanings depending on context -- the burning crosses in Madonna's video for "Like A Prayer" certainly weren't meant to have the effect of intimidating anyone, but they did convey a symbolic message--specifically, one opposing messages of race hate. One of the problems is that the Virginia law is worded so broadly that had she made her video in Virginia, Madonna could have been arrested, jailed and prosecuted for burning those crosses. Admittedly, she would almost certainly have been acquitted at trial, but the fact that its even an issue is problematic.

(BTW, should we take this dicussion over to the Hate Crimes thread?)

― J (Jay), Saturday, 14 December 2002 19:53 (twenty-two years ago)

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Oh , no! States Rights! OH, NO!!

December 13th, 2002! WASHINGTON, DC -- America pass stronger state governments, and less federal governing.