Over at The Volokh Conspiracy, Todd Zywicki cites Jesse Jackson’s discovery of the “Constitution in Exile”:

We have repeatedly marveled here at the discovery by some of a secret plot by conservatives and libertarians to reimpose the so-called “Constitution in Exile.” So secret, apparently, that advocates of the theory won’t even use the label in public (of course, they don’t seem to use it in private either…). Jesse Jackson is the latest to have unmasked the nefarious plot:

Now, on the far right of American politics, comes a new reaction proclaiming that the real Constitution has been “in exile” since the 1930s. They want to roll back not only the privacy doctrine on which women’s right to choose rests, but the Warren Court’s rulings and those of the Roosevelt Court also. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was struck down as exceeding congressional power and when states’ rights were exalted.

Alito is in that line.

Courtesy of Ann Althouse, who provides a pithy assessment of Professor Jackson’s legal analysis as well.

My question is more pedestrian–where in the world did Jesse Jackson latch on to the phrase “Constitution in Exile”? If it has filtered down to popular use in this manner, this is a meme that seems to have a remarkable degree of strength.

Ann found the article so vile, that she edited it out of her post. It is basically your standard barking moonbat anti-Alito diatribe – cherry-picking decisions to support the basic argument that Alito is bad because the Christian fundamentalist right likes him.

But Jackson’s idiocy is further evidenced by his citation of the so-called “Roosevelt Court”, as a bastion of civil rights. In reality, the Hughes and Stone Courts had a very mixed bag, with respect to civil rights. With the big black mark being Korematsu (1944), where the Court upheld the internment of American citizens of Japanese ancestry. And indeed, the decay of State’s Rights can be taken at least back to the White Court.

Further, Roosevelt himself – a noted anti-Semite – was not a boon to African-Americans either, as noted in this Reason Online review of Jim Powell’s “FDR’s Folly“, by Damon W. Root:

[T]he Agricultural Adjustment Act of 1933 authorized the secretary of agriculture to inflate prices by reducing farm acreage. This meant white farm owners were paid to let their land sit idle, often resulting in the eviction of sharecroppers and tenant farmers, a significant number of whom were African American. Powell reports that reduced acreage particularly affected sharecroppers, whose estimated annual cash income fell from $735 in 1929 to $216 in 1933. The Department of Agriculture, moreover, paid farmers to destroy crops and slaughter livestock. This occurred while millions of Americans went hungry. “This was just the sort of thing,” Powell notes, “that John Steinbeck protested against in his 1939 novel The Grapes of Wrath.”

Southern states, home to the nation’s poorest citizens yet full of dependable Democratic voters, received less New Deal spending than comparatively richer Western states, whose voters perhaps required additional persuasion to support Democratic candidates. Powell cites one study showing that states with a higher percentage of black residents and a lower per capita income received fewer New Deal dollars than richer, whiter states. Thus blacks were directly injured by New Deal policies, then ignored when it came time to dispense New Deal dollars.

It was New Deal labor laws that had the most pernicious impact on African Americans. The National Industrial Recovery Act (NIRA), in effect from June 1933 until a unanimous Supreme Court declared it unconstitutional in May 1935 (in Schechter Poultry Corp. v. United States), was considered the hallmark of the New Deal. In addition to creating the Works Progress Administration, the NIRA authorized the National Recovery Administration (NRA), which organized cartels, fixed wages and prices, and, under section 7(a), established the practice of collective bargaining, whereby a union selected by a majority of employees exclusively represented all employees.

While such compulsory unionism is routinely celebrated as a milestone for the American worker, many African Americans saw things differently. The NAACP’s publication The Crisis, for example, decried the monopoly powers granted to racist unions by the NRA, noting in 1934 that “union labor strategy seems to be to obtain the right to bargain with the employees as the sole representative of labor, and then close the union to black workers.” Members of the black press had something of a field day attacking the NRA, rechristening it the “Negro Removal Act,” “Negroes Robbed Again,” “Negro Run Around,” and “No Roosevelt Again.”

NRA codes harmed other poor groups as well. By setting the price of food and goods above market levels, the agency’s price controls made it that much more expensive for the nation’s poor and unemployed to provide for themselves and their families. Struggling entrepreneurs also suffered. Jacob Maged, a 49-year-old immigrant dry cleaner, spent three months in jail in 1934 for charging 35 cents to press a suit, rather than the NRA-mandated 40 cents.

To meet the inflated payrolls required by New Deal minimum wage codes, employers eliminated unskilled and marginal positions, precisely the sort of jobs filled by African Americans and other disadvantaged groups. According to a Labor Department report, between 30,000 and 50,000 workers, primarily African Americans in the South, lost their jobs within just two weeks of the activation of the Fair Labor Standards Act (1938), which set a uniform minimum wage. Not surprisingly, both unions and industrialists in the North favored the minimum wage, since it undercut their competitors in the South.

In 1935 the National Labor Relations Act (or Wagner Act, after its sponsor, Democratic New York Sen. Robert Wagner) revived section 7(a) of the recently defunct NRA and granted monopoly bargaining power to unions selected by a majority of employees. Neither company-sponsored unions nor unions representing a minority of workers were permitted. The act’s original draft contained a clause forbidding discrimination against African Americans by federally recognized unions, but the clause was removed at the behest of the American Federation of Labor, a notoriously racist outfit at the time.

Predictably, FDR failed to spend any of his considerable political capital to retain the clause. Empowered by the Wagner Act, American unions brazenly continued their decades-long discrimination against African Americans, the effects of which are still visible in racial disparities within unionized trades such as construction.

So Franklin Roosevelt’s New Deal increased poverty and joblessness among African Americans, empowered discriminatory labor unions, and, when the Supreme Court overturned Lochner v. New York, removed an effective legal tool to challenge segregation laws and other racist state actions. McMahon’s ambitious attempt to salvage FDR’s record on race is clever, but his focus on the long-term and secondary effects of Roosevelt’s judicial nominees and policies fails to convince in the face of the direct negative outcomes the New Deal produced for many American blacks.