…[M]aintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution, “That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life liberty and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” is essential to the preservation of our Republican institutions; and that the Federal Constitution, the Rights of the States, and the Union of the States, must and shall be preserved.
To these important ideas, let me add the following admonition: the words we choose to express our ideas matter as much—and often, more—than the ideas themselves.
At the core of these important ideas is the Constitution. One of the most remarkable phenomena I’ve encountered over the last year has been the number of people who have become re-dedicated to the Constitution—its actual words and their meaning. This new dedication is reflected in the number of groups that have distributed pocket copies of the Constitution at rallies and meetings (I have five new and different copies sitting on my desk as I am typing this post). However, I am concerned that some of my friends are not reading this document closely enough.
At virtually every meeting I attend, someone stands up and says, to great cheer, that the power of the federal government is limited to the list of 17 categories enumerated in Article I, Section 8, and delegated to Congress. Forgetting that other powers also are granted to the President and the Judiciary, this limited reading of Congress’ authority ignores the rest of the Constitution.
First and foremost, it ignores that pesky 18th paragraph of Section 8, which grants to Congress the power to pass any and all legislation to “necessary and proper carrying out” all of the powers enumerated, or vested to the Federal Government, within the Constitution.
Second, 9 of the 26 amendments to the Constitution have expanded the list of enumerated powers under Article I, Section 8, for which Congress may pass “necessary and proper” legislation, including the abolition of slavery (13th Amendment); the protection of civil rights of individuals from the actions of State governments, the proper apportionment of representatives, the rights of citizens who engage in insurrection, and the validity of the public debt of the federal government (14th Amendment); the right to vote (15th, 19th, 24th, and 26th Amendments); the power to establish and collect an income tax (16th Amendment); the prohibition of commerce related to liquor (18th Amendment, repealed by the 21st Amendment); and the criteria for appointing electors from the District of Columbia to the Electoral College (23rd Amendment).
When you take the enumerated powers for the regulation of interstate commerce and the protection of civil rights of individuals from the actions of State governments, and couple them with the power of Congress to pass “necessary and proper” legislation to carry out those powers, the boundaries of the limits our Founders placed on the federal government have been expanded by the people through amendment, regardless of what any liberal judge has done to misconstrue the text. The challenge for those of us who want to retain limits on the government is to determine where that boundary should now lie.
Where I disagree with Mr. Paul (and others) is with his apparent contention that the Civil Rights Act of 1964 was either outside this boundary, or was not a proper exercise of governmental power within the boundary. After the 14th Amendment was passed, the Republican Congress passed laws pursuant to that Amendment that protected individuals’ rights to buy and sell property and labor, and the rights of individuals to contract with one another. That Congress properly noted that when any of us walk into a place of business to buy or sell something, when we apply for a job, or try to buy, sell or rent property, the formation and performance of those transactions are protected by a bundle of rights and obligations that have been developed over centuries of common-law decisions, modified by statutes, and enforced by courts; so, the government, either directly or indirectly, has been involved in those “private” transactions for centuries. That Congress recognized that any interference in the ability of an individual to engage in those transactions—either through actions of law enforcement or by the acts or omissions of courts—was an infringement on basic civil rights. Therefore, under the post-Civil War legislation, private discrimination in such transactions would not be enforced or honored by officials or courts, and the federal government created a means to protect people from such conduct. As a result, those laws effectively prohibited discrimination based on race in private, commercial transactions, because the law could not enforce it.
The Civil Rights Act of 1964 did no more than to renew and apply those protections to a broader category of transactions (it is the judiciary, and post-1964 legislation that have improperly expanded the role of government). At the time, Republican leaders, including Everett Dirksen and Gerald Ford mustered large Republican majorities within their caucuses in the Senate and House to pass that legislation. Yes, some Republicans, including Barry Goldwater and William F. Buckley (both of whom I revere), fought the law on Constitutional and limited-government grounds, and they were wrong.
The same arguments that Mr. Paul uses (and Goldwater and Buckley used) were used by the majority in the infamous Plessy v. Ferguson case, which upheld the segregation of people based on race when buying a ticket and riding a train, thereby subverting the 14th Amendment, the post-Amendment legislation, and the outcome of the Civil War:
The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N. Y. 438, 448,
this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically.
However, the lone dissenter, Republican-appointee John Harlan, responded as follows:
In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. …I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed such legislation…is inconsistent, not only with that equality of rights which pertains to citizenship, national and state, but with personal liberty enjoyed by everyone within the United States. …
…[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved.
To accept Mr. Paul’s view would be to tacitly accept or condone the differential treatment of people based on race or other criteria, and to deny to them that bundle of rights and obligations that have been developed over centuries that protect us in the conduct of the business of our everyday lives. This view is an anathema to the heritage of our party, and to our conservative principles—which we believe to be universal.
Finally, words matter.
The Republican Party always has faced a paradox: it was created to preserve the principles, society and government formed by the Founders; but, this uniquely conservative mission was to preserve the most liberating ideal man has pursued—a society based on universal liberty, and the admonition to love our neighbor. Too often in our quest to be true to our conservative mission, we have said and done things that damage people’s perception of our commitment to the liberating ideal.
One of the great problems that conservatives have is that, when we fight to preserve customs and traditions that are good, we often also include within our sweep a defense of those customs and traditions that are indefensible (it is good to preserve our freedom of contract, it is indefensible to deny access to that same freedom to anyone based on race). Russell Kirk, in his great work The Conservative Mind, noted this problem in the section he included on Southern Conservatives of the 19th Century. In this context, even if Mr. Paul was just musing about the propriety of the Civil Rights Act of 1964, and did not really mean what his words conveyed, he reinforced a damaging impression that many people have of conservatives—that we really don’t care about the universality of the civil rights at the heart of our society.
William F. Buckley, late in life, belatedly acknowledged that his view on the Civil Rights Act of 1964 was wrong, and probably hurt conservatism; just as he noted that Goldwater’s most famed statement that “Extremism in the defense of liberty is no vice,” and “moderation in the pursuit of justice is no virtue,” probably cost conservatism dearly in the long-run. Although most Republican leaders saw the Civil Rights Act for what it was and fought for its passage, people in many communities listened to Goldwater’s words and heard a message that they are still recoiling from—and they’ve been running from the Republican Party ever since. In 1960, Richard Nixon received 32{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of the African-American vote for President, and by 1968 he received 8{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}; Republicans have never really recovered from the loss of this constituency.
Had Goldwater used the word “vigilance” in place of “extremism”, his intended meaning would have been the same, but much of the damage he wrought would never have occurred. It is time to stop this type of rhetoric. We must be vigilant in defense of our principles without being extreme, and we must understand the actual words of the Constitution we are defending. As Reagan challenged us in 1977:
…Our task now is not to sell a philosophy, but to make the majority of Americans, who already share that philosophy, see that modern conservatism offers them a political home. We are not a cult, we are members of a majority. Let’s act and talk like it. … When we are maligned as having little thought or compassion for people, let us denounce the slander for what it is. Concern for the people is at the very heart of conservatism. Concern for the dignity of all men; that those in need shall be helped to become independent not life time recipients of a dole; concern that those who labor and produce will not be robbed of the fruit of their toil or their liberty. Concern that we shall not forfeit the dream that gave birth to this Nation — the dream that we can be as a shining city upon a hill–an “alabaster city undimmed by human tears.”
