Magazine June 21, 2010, Issue

The Right’s Civil Wrongs

(Darren Gygi)
On the intellectual roots of a troubled legacy

Civil rights are a problem for the American Right: a political problem, an intellectual one, a moral one. In the civil-rights debates of the 1950s and 1960s, many conservatives — including William F. Buckley Jr., other figures associated with this magazine, and Sen. Barry Goldwater — took positions that the vast majority of conservatives now reject. Most contemporary conservatives who know this history regret it and find it embarrassing.

In some cases these conservative positions were motivated by straightforward support for an official policy of white supremacy, or by a desire to enlist segregationist southern Democrats in the burgeoning conservative movement. But some people held these positions while also sincerely wishing for segregation to end. They believed that their conservative principles — principles that do not on their face entail hostility to blacks — compelled opposition to the civil-rights movement’s platform. Most critics place Goldwater in this group.

But if the conservative record on race cannot be dismissed as the product of conservative racism (or indifference to racism), the implications of that fact should be disconcerting rather than reassuring for conservatives. The principles that led the Goldwaterites to oppose civil rights are still upheld by conservatives today. Indeed, every segment of the Right cherishes a principle that was at least in serious tension with the triumph of civil rights.

Conservatives favor federalism. But the civil-rights laws involved a huge expansion of federal power over matters previously reserved to the states. Traditionalists believe that change should be incremental and organic. The civil-rights laws sought to effect a revolution in southern mores. Conservative legal thinkers believe that the courts should defer to Congress and state legislatures unless the Constitution makes judicial intervention unavoidable. The Supreme Court ordered the desegregation of the schools based on reasoning more sociological than constitutional. Libertarians think that private conduct should be unregulated so long as it is not coercive. The Civil Rights Act of 1964 banned private actors from withholding services or denying employment on the basis of race (or of religion, sex, or national origin).

It is this last point that got Rand Paul, the Republican nominee for the U.S. Senate from Kentucky, into trouble. Paul is a libertarian who has expressed opposition to the provisions of the Civil Rights Act that regulate private (that is, non-governmental) conduct. After his remarks set off a national controversy, Paul clarified that he believes that federal intervention in the South was necessary, that he would have voted for the act, and that he does not seek to undo the portions of the law that he thinks were wrong. He has not, however, backed off from his contention that the regulation of private behavior was wrong. Racist business owners may warrant boycotts and social ostracism, in his view, but the federal government should not bar them from acting on their noxious beliefs.

#page#Some Paul supporters reacted to the controversy by questioning the newsworthiness of his views about 46-year-old legislation that nobody expects to see debated in the Senate. They are probably less important than his views about how to balance the federal budget, respond to Iran, or handle judicial nominations. Someone who agrees with him about those matters but disagrees with him about civil rights should probably vote for him. And it would be unfair to conclude that Paul is a racist or is trying to use opposition to the act to appeal to racist voters; he has instead acted as though he considers his views on the act a political liability that his philosophy unfortunately compels.

But Paul’s views on the Civil Rights Act cannot simply be treated as an irrelevancy because it is 2010. He is running largely on the basis of his adherence to a political philosophy. He means to confine the federal government to what he regards as its proper constitutional dimensions. Voters may reasonably conclude that a political philosophy that places such strict limits on government that it cannot ban racial discrimination in circumstances such as those of the South in the mid-1960s is defective.

Which it is. Looking back, it seems obvious that the Goldwaterites failed to give sufficient weight to the black claim to justice. Even those who agreed that blacks were being treated unjustly did not see the rectification of that injustice as an urgent necessity, and that moral error affected their political judgment about federal intervention.

They also erred about the Constitution, even as they, like Paul, urged restraint in its name. Too many conservatives in the Sixties treated the claim that the Fourteenth and Fifteenth Amendments to the Constitution are not valid law as though it were a serious argument. But even those who were immune to this kookery acted as though the enactment of these amendments had changed nothing.

The claim that segregation was an internal matter for the southern states to resolve was never morally compelling, but it would have been legally defensible in the absence of those amendments. Their enactment fairly obviously put those states in violation of the Constitution; and the amendments explicitly grant Congress the power to remedy the offense. The amendments easily justify the Voting Rights Act (at least in its original form) and many of the provisions of the Civil Rights Act.

The provisions of the Civil Rights Act that trouble Paul — the ones regulating private-sector discrimination — were the most constitutionally problematic. Two constitutional justifications for the act were asserted. The first was its power to regulate interstate commerce. Since the New Deal, this power has been understood expansively. But too much of the economic activity the act regulates is purely intrastate for this justification truly to satisfy the constitutionally scrupulous.

The second justification was the Fourteenth Amendment’s guarantee that states would not deny any person the “equal protection of the laws.” The difficulty with this justification is that in theory a state could allow private discrimination while still providing the equal protection of the laws. The guarantee, that is, seems to block only public-sector discrimination and, perhaps, government-imposed private discrimination. For this reason the Supreme Court struck down the Civil Rights Act of 1875.

#page#Its reasoning was too narrow, as should have been apparent by the 1960s. Jim Crow was a deeply rooted social system with many facets that blurred the private-public distinction. Governments discriminated against citizens, and ordered the private sector to discriminate. Privately organized terrorism was allowed by the state. It was entirely reasonable for a constitutionally conscientious legislator to conclude that the only way for Congress to enforce the guarantee that states offer equal protection to all citizens was to uproot the whole system: Force the states to allow blacks to vote; require hotels and theaters to treat customers without regard to race; ban employers from considering race as well; end every part of the system that could be ended.

If this reasoning suffices to overcome constitutional scruples about the legislation, it should also suffice to overcome libertarian ones. One might believe that in general people should be free to hire or fire employees on whatever basis they wish, and set a high bar for the infringement of this freedom, while also believing that in the specific circumstances legislators faced in the 1960s this freedom had to be curtailed in order to end a wicked and coercive status quo.

Note, however, that this reasoning, depending as it does on the peculiar circumstances Congress faced, cannot justify just any congressional enactment in the name of equality. It would be implausible to argue, for example, that Congress had to outlaw age discrimination for the elderly to enjoy equal protection. Nor, I think, could a legislator argue with a straight face that requiring universities and employers to extend preferential treatment to black applicants would be justified as a way to enforce the Fourteenth Amendment.

The point is that the amendment requires Congress — it is clearly Congress that the Reconstruction amendments principally empower — to exercise its independent judgment about how to make equal protection real. The word “independent” should be stressed: Nobody seriously maintains that the Supreme Court could have by itself banned private-sector racial discrimination. The Fourteenth Amendment allows that prohibition but does not compel it.

Yet the congressional power to exercise such judgment is still a subject of debate. The Supreme Court, in a seminal 1978 case, decided to ignore the Civil Rights Act’s ban on racial discrimination by universities receiving federal funds. The Court essentially reasoned that a thumb on the scales for black applicants was consistent with the Fourteenth Amendment and that the Congress had no authority to prohibit it. (Actually, the Court went a bizarre step farther, and ruled that Congress intended to prohibit only whatever the Court decided to prohibit.) The Court’s affirmative-action rulings have never looked back.

Conservatives are highly skeptical of the congressional power to enforce the Fourteenth Amendment, libertarians even more so. In a 1997 case, City of Boerne v. Flores, the Court ruled, to much conservative acclaim, that Congress could use its enforcement powers to protect only those rights that the Court recognized. Many libertarians have also objected to federal laws against abortion, such as the partial-birth-abortion ban, on the theory that these laws “disregard the federal system” and rest on “specious constitutional grounds” — to quote the concerns raised by Rep. Ron Paul, a prominent libertarian (and Rand’s father). On the assumption that unborn children are persons, however, such laws are fairly straightforward applications of the congressional power to enforce equal protection.

The Right’s past errors live on, alas, and not just in the mind of Rand Paul.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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