Friday, November 23, 2018


While researching a corrupt lawyer from Beaumont for acts taken in 1939, I found this opinion.  Depending on your perspective he was the good guy fighting with a mandamus to allow Negroes [I use the term for emphasis on the issue and it is the term used in the Texas Supreme Court opinion] to attend the Texas Democratic Party Convention in 1932.

The Texas Supreme Court found the Texas Democratic Party by the First Amendment right to Freedom of Association.

In my research on this opinion it is clear to me for electoral purposes the Parties are bound by the Constitution and federal law, but the US Supreme Court seems to still believe they are a private club for administrative and membership purposes.  But in this case the Texas Democratic Party used its rules to ban Negroes from voting in the primaries.

"Convention of the Democratic Party in Texas on May 24, 1932, which reads:

"Be It Resolved, that all white citizens of the State who are qualified to vote under the Constitution and laws of Texas shall be eligible for membership in the party, and as such eligible for participation in the primaries."
 In the Gay Spectrum battle the right of Freedom of Association was argued for decades and we lost, until finally we won. So who knows?

I also like this opinion because it was written two days after the filing of the mandamus.  It also brings in a lot of common law and the writings from the Age of Enlightenment on Freedom of Association.  You need to take the racial question out of the equation and ask yourself how far can the courts go to regulate our private associations?

For me the discussion on the role of free association is so current and raises real questions.  If the government can regulate our political associations is the role of the people in organizing to effectuate good policy diminished?  You may not like the result of this case, that is very understandable.  But read  the substance of the argument. 

It blows my mind this opinion was written two days after the filing of the mandamus.  This is when judges and lawyers still knew how to research the law.

"DeTocqueville, in his celebrated commentaries on the American Constitution and Government, "Democracy in America," first published in 1837, noted at length the celerity with which voluntary associations were formed by the people of the United States for political and other purposes, and the effect which these associations had, not only on governmental affairs, but on social and business endeavors as well. Democracy in American (Reeve's Ed., 1862), Vol. 1, Chap. 12, p. 216; Vol. 2, Chap. 7, p. 138."

"In Chapter XII DeTocqueville commenting on the principle and liberty of association, in part, declared:
"In no country in the world has the principle of association been more successfully used, or more unsparingly applied to a multitude of different objects, than in America. Besides the permanent associations which are established by law under the names of townships, cities, and counties, a vast number of others are formed and maintained by the agency of private individuals."
For me this opinion forms the basis of a great doctoral dissertation.  Where is the line between Freedom of Association and discrimination.  Clearly rules or laws which prevent anyone from voting are unconstitutional?  But we have a system now of only two real options, with some very successful exceptions. This case can actually be used by Independents to argue why the Two Pary System is actually very undemocratic.
If to really participate in the elections you must choose Democrat or Republican and as private parties they can write rules as to who can participate in their primaries, do they in effect exist to limit voter participation?
Texas has an open primary.  So when the trolls post anonymously they are registered Democrats or Republicans they are probably not even registered to vote since no such system exists in Texas.
Would an oath to run for office to uphold a Party Platform which stands for taking away a group's right be unconstitutional?  Dangerous waters my friends.  But if supporting such a platform is your only option for running for elective office and to in fact in some areas hold office, is  the Party Platform then subject to constitutional review?
There is no easy answer to any of this.  The day we lose the right to freely associate  based on our views, is the day we all become slaves to an oppressive government controlled by few.  Oh, wait isn't that what the Two Party system is about?
Yes I am a legal eagle nerd - but these things matter.

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