Monte Kuligowski
Eric Holder, the Panthers, and the Constitution
By Monte Kuligowski
March 18, 2011

What were those New Black Panthers thinking when they were intimidating white voters in 2008 at the polling station in Pennsylvania? Just about everyone in line in liberal Philadelphia were likely Democrat voters anyway. It turns out that the Panthers were kind of prophetic though. The thugs warned the "crackers" that they would be "ruled" by a black man. Obama certainly proved them right in that regard.

Part of Obama's rule over America involved making Eric Holder the U.S. Attorney General — a man who referred to white America as "a nation of racial cowards."

And the white liberal media establishment proved Holder correct by cowardly looking the other way as Holder refuses to prosecute the Panthers under federal voting rights law. Imagine if a white militant group had threatened blacks at a voting place with a billy club.

In a recent column, Jeffrey Kuhner of the Washington Times calls for Holder's resignation for his blatant "liberal racism" as exhibited through his selective prosecution. Kuhner notes that:

Mr. Holder is deliberately evading questions about the Black Panther case. He is guilty of nixing an investigation into blatant voter intimidation because the culprits were black — and the victims white. He refuses to answer questions directly or release documents about the decision-making process that led the Justice Department to drop much of the case. In particular, he refuses to answer whether Deputy Assistant Attorney General Julie Fernandes instructed her subordinates to pursue only civil rights investigations involving victims who are black. Mr. Holder is stonewalling in a desperate attempt to cover up his race-based policies.

Apparently, Mr. "My People" Holder only wants to prosecute civil rights cases involving black victims. On its face, that's appalling. But Holder's non-action may inadvertently be more in keeping with the spirit of the Civil War Amendments (13th, 14th and 15th) than the precedent of exceeding federal authority in the name of civil rights law. The 15th Amendment is the source of federal authority for voting rights law.

We've come to the fortunate point in U.S. history where conservatives are beginning to "question everything," as related to federal power. With regard to Holder refusing to prosecute the Panthers, the question that comes to mind is this: since the powers of the federal government are "few and defined," what gives the feds the authority to prosecute anyone in this context in the first place?

The issue in the case of United States v. New Black Panther Party for Self Defense is whether the defendants violated the Voting Rights Act of 1965. Section 11(b) of the Act states that:

No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote . . . .

The next question is where did Congress get authority to enact the Act? That's easy because the Act opens with these words: "AN ACT to enforce the Fifteenth Amendment to the Constitution of the United States, and for other purposes."

Immediately, we see the red flag "and for other purposes." But let's look at the constitutional purposes first. The 15th Amendment is short so I'll quote it:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

There you have it. Neither the feds nor the states may deny any citizen the right to vote based on race or color. If President Obama were to send out the New Black Panthers to interfere with voting rights, e.g., Congress could enforce the 15th (and of course, the courts may enforce the voting right). Likewise, if a southern state were to reintroduce and pass an old law to abridge the voting rights of a group of citizens based on race or color, Congress could correct the problem. In practicality, the federal courts would strike the law down before Congress could act.

So we see that unless a bad person is acting under color of federal or state law in causing voter abridgment / intimidation, the 15th Amendment does not cover the violation. The Voting Rights Act is blatantly wrong to say "otherwise" (see above). Rogue acts of voter intimidation not involving the force of government fall within the sole jurisdiction of the states.

Consequently, the Act's jurisdiction-creating language, "and for other purposes," transparently ignores the limits of the 15th Amendment. As a rule: a constitutional amendment may only be changed, ignored or expanded by passing another constitutional amendment (see Prohibition).

Since Eric Holder wants to prosecute selectively in voting rights cases, maybe he should just leave enforcement of all private violations to the criminal justice systems of the states. Holder's race-based policies would at least be curtailed and the Constitution would be honored.

© Monte Kuligowski


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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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