I have a confession to make. I didn't read his 1960 book Conscience of a Conservative until just a few years ago. How humbling it was to find all these views that I'd had rattling around in my brain for so long already addressed, cogently and succinctly, in a book written while my parents were in high school. Watching the documentary tonight brought back some of the tension I felt when reading part of the book--Goldwater's objection to the Civil Rights Act of 1964.
Long time readers of this blog will note that I have often written favorably about that law, noting how, since it was passed before I was even born, its provisions are all I've ever lived under; I've never seen a "coloreds only" drinking fountain, for example, except in pictures. The law's principles are some I'd never questioned--until I read Conscience of a Conservative.
In Chapter 4, the subject of which is civil rights, Goldwater has this to say about Brown v. Board of Education:
If we condone the practice of substituting our own intentions for those of the Constitution's framers, we reject, in effect, the principle of Constitutional Government: we endorse a rule of men, not of laws.
I have great respect for the Supreme Court as an institution, but I cannot believe that I display that respect by submitting abjectly to abuses of power by the Court, and by condoning its unconstitutional trespass into the legislative sphere of government...
It so happens that I am in agreement with the objectives of the Supreme Court as stated in the Brown decision. I believe that it is both wise and just for negro children to attend the same schools as whites, and that to deny them this opportunity carries with it strong implications of inferiority. I am not prepared, however, to impose that judgment of mine on the people of Mississippi or South Carolina, or to tell them what methods should be adopted and what pace should be kept in striving toward that goal. That is their business, not mine. I believe that the problem of race relations, like all social and cultural problems, is best handled by the people directly concerned.
That passage, much of which I'd highlighted in my book, was brought back to mind while watching the documentary. The documentary at one point focused on his objections to the Civil Rights Act of 1964, and his arguments against it are just like those I quoted above.
Specifically talking about the "public accommodations clause", Goldwater said, it's "morally wrong to practice discrimination, and it's also economically bad". Referring to persuading businesses not to discriminate, he said, "This type of approach, while I know it's time-consuming, it's having its effect, and I think it will achieve what we want". Roy Wilkins, Executive Director for the NAACP, said, "This is the basic disagreement between the Negro community and Senator Goldwater. They don't think he's prejudiced, they don't think he's a racist, I don't think he's a racist. But they can't go along with a man who says we outta let what's going on in Mississippi be settled by Mississippi and the federal government ought to knit or do something else. This we can't take." Julian Bond later said that he took Goldwater at his word that his opposition was merely a philosophical disagreement and not racist, but that Goldwater was wrong.
Having written that, let's take the "racist" canard off the table now and discuss the issues. Under the Constitution, the federal government should have no role in education. And since "public accommodations", such as restaurants or buses or hotels, don't necessarily involve interstate commerce (except under a stretched definition that makes any commerce automatically interstate commerce), a valid argument can be made that the federal government should not be involved in such issues--that Brown was an unlawful usurpation of powers and that the public accommodations clause was as well, despite the beneficial outcomes.
Being a strong constitutionalist myself, but also believing strongly in justice, I'm torn about how to reconcile the opposing values that inhabit this situation. I won't argue that the feds shouldn't enforce the 14th Amendment or otherwise "secure the blessings of liberty" to black Americans, but that isn't the case regarding public schools--clearly a state function--and public accommodations. I see a strong argument in Goldwater's belief that requiring business to treat the races equally, even though it's probably in their best economic interests to do so, violates rights related to assembly, speech, religion, and property.
So now comes the big question--when and how does one choose between two opposing values? If we go against Constitutional guarantees, or stretch the language of the Constitution to allow it to mean whatever we think it should mean, or just impose whatever it is we think it "right", what's the value of having a Constitution at all? Are we not then, as I quoted Goldwater above, a nation of men and not laws?
The role and influence of the federal government is an important topic that, it seems to me, is not much considered by the general public anymore, or even, sadly, by our lawmakers; people just assume "the government" needs to do something, or "there outta be a law". I'm told that perhaps the Constitution is outdated, that today's problems and issues are too complicated for us to rely on the philosophy of a few dozen men from an agrarian hodgepodge of towns and villages a couple hundred years ago.
Goldwater called such an argument "poppycock", and I agree. It's undeniable that a government's growing power and influence makes it more likely to interfere in the lives and affairs of its citizens; the Founders tried to limit that, is it now outdated? The Founders thought that jurisdictions closer to the people, that is, the states, are better suited to solving problems--is that now outdated? The Founders established a Republic, is that now outdated? The Founders respected the concept of property and created a government that respected the property of individuals, is that now outdated? The Founders created a government of limited, enumerated powers--is that now outdated?
These are the concerns that animate conservatives. They deserve a more thoughtful hearing than they often receive.
7 comments:
The true brilliance of the Constitution was, is, and always will be that the Founding Fathers were smart enough to know that they didn't know, nor could they begin to predict, everything. Thus, they created a framework.
The "Necessary and Proper Clause" is in there for a reason, and McCulloch vs. Maryland has clearly established precedent. The nation has survived and thrived, like no other in history, with such interpretation. This is not, as you question, "choosing between opposing values."
Jefferson believed in limited powers of government, yet exercised broad interpretation of those powers throughout his presidency and his life. He didn't put "education" in the federal government's "stated" powers, but wrote extensively about the necessity and responsibility of "government" to provide free and public education.
The answer is to apply a pragmatic logic to the interpretations, knowing that the limited statements of the Constitution were expected by the writers to be "interpreted" and "applied."
To follow your documentary, might I suggest George Will's "Statecraft as Soulcraft." I'm reading it right now, and it truly expresses my understanding of my conservative principles.
That could, of course, be followed by the work of Edmund Burke, Benjamin Disraeli, Irving Kristol, and Whittaker Chambers - all true conservatives.
Thanks for posting this, as I've been meaning to post a series of blog entries, exploring conservatism and contrasting it with the "libertarian populism" that has been dominating the airwaves and political campaigns.
It's interesting that we've been pondering the same issues.
“I won't argue that the feds shouldn't enforce the 14th Amendment or otherwise ‘secure the blessings of liberty’ to black Americans, but that isn't the case regarding public schools—clearly a state function…”
I have to disagree here. The long-term trend towards extending to the state and local level the protections afforded by the Bill of Rights and subsequent amendments to the federal Constitution—“incorporation”—has, I think, been a positive one overall. And, I would also suggest, it fully justifies the Brown decision.
I’m a big believer in the vision of the Founders: a republic with limited, enumerated powers, dedicated to the protection of individual rights and property, which gives wide latitude to states and localities to address their own problems as they see fit. By the same token, however, I don’t see how such a government can be regarded as an effective instrument for securing our fundamental rights and freedoms if it stands idly by and allows state and local governments to trample on those same rights and freedoms at will. Of what value, for example, are Second Amendment guarantees to a right to bear arms to the residents of a city like Chicago or Washington DC if those localities can effectively make gun possession all but impossible legally?
On a much broader scale, African-Americans after the Civil War would have asked much the same question as they were gradually transformed into second-class citizens in their own country—despite the plain language of the 14th and 15th Amendments to the Constitution. State-imposed systems of racial segregation, for example, were perfectly alright under the Fourteenth Amendment’s “equal protection” clause, according to the Supreme Court, as long as the separate systems were “equal.” The court established that rule in the infamous 1896 Plessey v Ferguson decision—the decision that was substantially repudiated in 1954 by Brown.
I share your highly skeptical attitude towards the entire notion of the federal government involving itself in the field of education. I think you are correct in asserting that education is essentially a state and local function and not a federal one. But I don’t think that this is a valid basis for objecting to Brown because Brown was never really about education, per se. Brown was about the legitimacy of a state-imposed system of racial segregation. And I feel confident in asserting that a reasonable, contemporary understanding of the Fourteenth Amendment’s “equal protection” clause would hold that neither a state nor a local government can legally impose a system of racial segregation in the course of discharging its basic functions, whether it is in education or any other field of endeavor.
Now, what are the ramifications of all this for conservatives and the ongoing fight for limited government? I have trouble taking seriously the notion that “incorporating” the rights and freedoms of the federal Constitution vis-à-vis state and local governments ever represented some kind of tyrannical Washington power grab. On the contrary—as wide a latitude as state and local governments should have under our federal system, some American rights and freedoms are so basic and fundamental that, yes, everyone really needs to be on the same page. If, for example, a locality decides that only citizens of some racial categories can vote and others not, it is entirely reasonable that the federal government should step in and ensure the right to vote for all citizens. Such action is not at all in conflict with the basic tenets of limited government. It is not someone imposing their own personal judgment or values on other people. It is the government fulfilling its most essential function—securing the rights and freedoms of the citizenry.
A brief follow-up:
It is my belief that conservatives in the nineteen fifties and early sixties who opposed the civil rights movement on the grounds of federalism and other considerations related to limited government made a colossal mistake—a mistake that conservatives have been paying a heavy price for ever since… and I mean right on up through to today. How much damage did they inadvertently end up inflicting on the cause they championed by allowing civil rights to become a “progressive” issue? How much damage did they do by allowing the very ideals of federalism and limited government to become associated with racism and the defense of “Jim Crow”? The answer to both questions is—lots, and more is yet to come.
The constitutional separation of powers, the checks and balances, are force multipliers to use modern, military jargon. They won't win the struggle between the authoritarians and the freedom-minded but they will make the destruction of liberty a more difficult and time-consuming task for those opposed to personal freedom.
But the ramparts must still be manned by those who will fight for freedom as they have been. That's not a guarantee of victory though. To paraphrase Benjamin Franklin, we've got our republic now all we have to do is keep it.
More directly related to Brown v. Topeka is the observation that the decision would never have been possible if the racial segregationists in charge of the Topeka school district had simply divided the district into two, separate districts.
The decision was based on intra-district segregation. Since the purpose of school districts has always been to provide a legally-supportable rationale for segregation had those in charge of the district been a trifle more clever, or perhaps a trifle less avaricious and power-hungry, Brown v. Topeka would never have made it to the Supreme Court.
Interestingly, Thomas Jefferson suffered a similar affliction during his affair with the married Maria Cosway after his wife’s death. His famous ‘head and heart argument’ pitting calculating reason and his spontaneous emotion.
More to the point. The founders asserted life, liberty, and the pursuit of liberty… I snarkly ask, is that outdated now?
Thomas Jefferson’s soaring yet somewhat nebulous language in The Declaration of Independence asserts life, liberty, and the pursuit of happiness to be American ideals. These loaded values can be antagonistic. Too much liberty for one spoils another’s pursuit of happiness. And the corollary holds as well. Too much pursuit of happiness for one man impinges on another’s liberty.
I believe your … “is that outdated now” rhetoric builds a ‘big government’ straw man and misses the point that our national creed inherently and necessarily creates conflict.
Furthermore, Christian values that many say America is founded on, such as “love your neighbor as yourself” (Mark 12:31 and Matthew 22:39) and paraphrasing Matthew (7:12) “Do unto others as you would have them do unto you” conflict with the rejection of the “public accommodations clause”. How does one square that?
I’m still working on how we resolve the conundrum other than, “It’s just wrong.” Sometimes that’s all you have.
I think people begin with the conclusion, coughed up by an unconscious emotion, and then work backward to a plausible justification.
And as the video portrays...
How long do we as a nation allow 'economics' to work on Civil Rights in Mississippi? 1970 ... 1984 ... 2010?
What do you tell 'colored folk'? Hang on. Economics will take care of it. They'll come around?
Poppycock, the Golden Rule, which you discussed, is not a matter of law. Rather, it would tug at the conscience of the individual business owner; it is for that owner to be pulled into two directions and have to decide, not the government.
I'm still struggling with the question of "how long will it take". That one small question is very powerful.
EK, I'm not arguing against incorporating the Bill of Rights and other such guarantees as protections not only against the feds but against all levels of government. I wonder, though: had "separate but equal" truly been equal, would Brown have taken place? And if it had, would the plaintiffs had won? There's good reason to believe that case would not mean what it does today given different inputs, which means that, like Poppycock said, it's likely that the Court started with "it's just wrong" and went from there. When the ends justify the means, I worry, especially when the powers of the federal government are in play.
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