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The Right's Stealth Tactics - Part III

IJ’s caseload is full of suits brought on behalf of low-income clients facing unfair evictions and small business owners shackled by absurd-sounding federal rules. In San Diego, IJ represented African American hair-braiders who challenged a federal law that required them to take 1,600 hours of classes at personal cost to get a license. In New York City, it represented private jitney-cab drivers fighting a corrupt franchise system.

The cases have merit, but they have a sinister aspect, too. IJ used Ricketts v. City of New York, the jitney drivers’ case, to attack a series of landmark constitutional decisions collectively called Slaughter-House. Slaughter-House has long been a target of conservative lawyers, because it expanded the role of the federal government in order to stop discriminatory practices within states. In the jitney-cab case, IJ’s lawyers argued that the drivers were held back by excessive regulation stemming from the Supreme Court’s misreading in Slaughter-House “of the original understanding of the constitutional limits on government power.” In the name of combating racism, IJ moved to overturn constitutional protections, stating, “Our ultimate goal is to restore economic liberty as a fundamental civil right by overturning the Slaughter-House cases in the Supreme Court.”

Similarly, IJ’s suits against Depression-era labor laws, such as the licensing laws that govern beauty shops, are part of a constitutional challenge to the Davis Bacon Act. On one hand, IJ argues, “The Davis Bacon Act was passed in 1931 to prevent migrant black construction workers from competing with white union labor.” But the reality is that Davis Bacon also mandated the Department of Labor to ensure that “prevailing wages” be paid to workers by contractors receiving federal funds. So, decisions that favor IJ could undercut Department of Labor protections.

This is the new face of the radical right. The attractive right-wingers who talk about “choice” and “civil rights” pose a threat to progressives who support the federal government’s role as a protector of individual citizens.

These groups are also attractive to women trying to make a go of it in their own businesses but feel hamstrung by federal regulations. Elinor Burkett, in her book The Right Women: A Journey Through the Heart of Conservative America, interviewed a slew of such women. They felt government affirmative action and workplace safety laws were fine for big business but hampered their smaller operations. Many of them looked an awful lot like feminists, but they didn’t see themselves as part of any group the federal government might protect. But rather than fighting to limit regulations that hurt them, they were being asked by IJ to help abolish them altogether.

And groups like IJ with their talk of “individual rights” can also hold an appeal for women who want freedom of choice and other rights. “It’s time to reframe the debate,” says Kathy Rodgers of the NOW Legal Defense and Education Fund. So-called individual rights, she says, “are for those who have; civil rights are for those who don’t.

“The judiciary is running scared, because ultraconservatives have been speaking up, and the rest of us have not,” continues Rodgers, whose group represented Christy Brzonkala. In the courts, the constitutionality of the laws themselves is being challenged.

Conservative Supreme Court justices like Clarence Thomas help the right’s cause. “They needed a second Scalia on constitutional questions,” says Connie Rice, a civil rights lawyer who fought Prop 209 with the NAACP Legal Defense Fund. The Court’s most critical recent decisions—challenging VAWA, the federal ban on age discrimination, federal workplace protections, and others—

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