Posted: February 6, 2009
Civil Rights and the Conservative Soul
by Hadley Arkes
illiam Voegeli, in "Civil Rights and the Conservative Movement," spoke some bracing truths about the conservative past, and even of our late friend, Bill Buckley (Summer 2008). They were bracing because they recalled the things truly said, with no attempt to touch them up and make them any the less unlovely than what they were. There were high flown doctrines about "States' rights," with cautions about legislating morality, or respecting the force of those "mores" woven in with the local culture. They were stylish ways of resisting change and fending off moral judgments cast in the law. And they also flew under false colors as doctrines of political morality. They were, in fact, empty of moral substance, and as they were applied to the condition of black people in America, they reflected a grievous failure of that practical wisdom that conservatives professed to prize beyond anything else. Conservatives at the time were nothing if not Burkeans, but it is a cruel irony that they kept exemplifying what Burke taught us to resist: namely, abstract doctrines, reduced to slogans, and applied to the case at hand without prudence or practical wisdom.
But surely that is not the last word to be spoken about Bill Buckley. And that portrait of the conservative movement in the past, so rightly struck, does not give us any telling insight into the "conservative mind" of our own time. As Sam Goldwyn used to say, we've all "passed a lot of water" since then. But I'm writing here of more than the "evolution" of ideas with the changing seasons of our politics. In the sweep of making his case, Voegeli curiously eclipsed, or obscured from view, truths about the conservative movement in America and about Buckley that were far more important—and ran far more deeply—than the faults he managed to recall.
Voegeli intimates, but comes nowhere near explaining, that large nature of Buckley that made him open to moral teaching, even the teaching that challenged at the root the slogans that passed as principles among conservatives. Some of that teaching emanated from the Catholicism he had never failed to take seriously, and that teaching, anchoring his judgment, helped him from getting drawn into the least humane currents of conservatism. But some of that teaching came with a Jewish provenance from Leo Strauss and his most devoted student, Harry Jaffa. Bill's willingness to encompass the Jaffaites and their teaching on "natural right" had to detach him from the paleo-conservatives, with their nostalgia for the old Confederacy and the ancien régime in Europe. Bill respected the argument made with philosophic force for natural right. And that disposition of mind would lead Bill back, even more surely, to the moral ground of the American regime itself. It would become ever more revealing that this moral ground of the regime was rejected and even despised among the conservatives he had venerated in his youth.
But that willingness to take seriously the argument for natural right also illuminated, in a telling light, the deeper split among conservatives in our own day. For it brought into clearer sight the real tension between those who would take things back to the moral truths underlying the American regime, and the votaries of a "conservative jurisprudence," who would constantly look for formulas, for new slogans, that would help us to avoid that appeal to natural right and "first principles." In sweeping past that ground of division among conservatives, Voegeli may fail to see that the moral glibness he finds in the conservative past may be alive and well today in the circles of those who constantly press upon us a jurisprudence consumed with such morally empty slogans as "judicial activism." Among those differences left unnoticed, Voegeli flies past this truth that dare not speak its name: that the civil rights movement has come to be hostile to the American Founding, come to deny the "truth" of "all men are created equal," with the result that the most important spokesmen for black America cannot give an account any longer of the moral grounds of their own rights. And in striking contrast, it is the conservative movement now that can explain, in a far more compelling way, the ground for the rights of black people and the character of the Constitution that was meant to secure those "natural rights," for human persons of all races and at every stage of their lives.
In the aftermath of Brown v. Board of Education (1954), the question had to be raised: was the racial separation of students in schools something wrong in principle, or something whose wrongness would be contingent on the outcome? If the students were separated on the basis of race and their reading scores went up, and their motivation improved, would the segregation have ceased to be wrong? The litigating arm of the civil rights movement committed itself to a course of finding the wrong of segregation in the circumstances of each case, and carefully avoiding any statement of the wrong in principle. As a result perhaps of arguing for years in that vein, the lawyers for the movement seemed to lose the sense of how to make that argument in principle. And as the Civil Rights Act of 1964 morphed into "affirmative action" and "racial preferences," the avoidance of any argument in principle became itself one of the adamant convictions of the movement. If it were wrong in principle to assign benefits and disabilities on the basis of race, then those racial preferences would be quite as wrong when they delivered benefits to black people at the expense of whites and Asians. But that is an understanding that has now been rejected as a heresy by black activists, and by people like President and Mrs. Obama, who have obviously benefited quite directly and palpably from this willingness to give preferment and place decisively, even solely, on the basis of race.
Whether racial discrimination is right or wrong is a matter regarded then as wholly contingent on whether it delivers benefits to black people. But the upshot then is: The leading spokesmen for "civil rights" have tutored black people now to understand their "rights" in a manner detached from the most unassailable moral ground of those rights. And as that understanding has been widely absorbed, it has made, of many black people, the most infirm of allies in defending and vindicating the rights of others.
The most dramatic example comes with the most dramatic parallel for the treatment of black people as a class: there is the most cultivated unwillingness now to notice the killing every year in this country of 1.2 million members of a notable "minority" group with no power to defend its own interest. And by that I mean those rather small human beings in the wombs of the women who bear them.
James Wilson, in his lectures on jurisprudence, argued that it was not the purpose of the framers and the Constitution to bring forth new rights. The object rather was to secure and enlarge the rights we already possessed by nature. But if we were bearers of those natural rights, when did they begin? Wilson's answer was that they began of course when we began to be. And that is why, he said, that the common law cast its protections over human beings from the first stirrings in the womb—from the very moment when it was known that we were there. Wilson recalled the practice, running back to ancient Greece, of exposing newborn infants. But the law in America was part of a radically different tradition: "With consistency, beautiful and undeviating," he wrote, "human life, from its commencement to its close, is protected by the common law." At every step, Wilson's understanding was connected to the very ground of natural rights, in the things that separated human beings from other animals. But that appeal, so evident and so strainless, to that generation of founders, has now been regarded as inscrutable and even dangerous by the leading lights in "conservative jurisprudence."
The people doing conservative jurisprudence do not like to think of themselves as relativists. And their passion for "originalism" marks a deep respect, bordering on piety, for the American Founding. But they have seen many liberal judges soaring untethered as they invoke high-sounding sentiments, and they have come to suspect that appeals to natural right and first principles simply give the judges a cover for imposing their own subjective preferences in the name of the law. And yet, if judges have made egregious mistakes, the remedy is in correcting them. The fact that judges have said zany things in the name of natural right does not prove the falsity of natural right. It rather summons us to sharpen our sense of discrimination as we separate the plausible from the implausible and false renditions of natural right.
If we are to be guided by a written constitution, it makes eminent sense to understand in the first place the meaning of the phrases put down by the men who wrote them, and by those who ratified them as part of the fundamental law. And if we are looking for the most sophisticated rendering of that original understanding, we can hardly do better than becoming students again of Hamilton, Wilson, and Madison. But some of our friends doing conservative jurisprudence would enjoin upon us a reverence for the founders, even while they regard as inscrutable and meaningless what Hamilton in The Federalist called those "primary truths, or first principles, upon which all subsequent reasonings must depend."
With that careful avoidance of first principles—or of any proposition too suggestive of a substantive, moral judgment—our friends speak in high passion of things like "judicial activism." But that hardly explains the substance of what has been done in disfiguring the Constitution. It might well require "judicial activism" to undo the vast damage done in the past. The point is that slogans of this kind, brandished now as the rallying doctrines for conservatives, are as empty as the slogans that conservatives in the past were willing to take as their signature tunes. The contempt that Voegeli expresses for that moral obtuseness of conservatives in the past could be transferred, with the same indictment, to the conservatives of our own day, who seem quite content to distract themselves with formulas of a comparable vacuity.
And yet...the conservatives in our own time are not trying to preserve a regime of racial apartheid or slavery under the august name of "states' rights." Beyond that, the concern with states and federalism is a serious concern, bound up with a regime of freedom and legal restraints. Voegeli is properly dismissive of the concerns expressed over the years for the misuse of the Commerce Clause. But as Joe Sobran once remarked, "Think of what Stalin could have done if he only had the Commerce Clause." The Commerce Clause was a rough, but useful guide of political economy, in putting some workable limits on the reach of federal power. Clarence Thomas, to my mind, has been amply warranted in his efforts to restore that clause to its older, more defensible meanings. At the same time, that clause is immanently implausible as the ground for the Civil Rights Act of 1964, penetrating past traditional barriers to strike at racial discrimination in private settings. But even the most accomplished conservative lawyers seem hard pressed to explain what the constitutional ground for the Civil Rights Act of 1964 would be were it not the Commerce Clause. I've offered my own, rival account in Beyond the Constitution (1990), but whether I gain adherents or not, it must be said that the constitutional ground for the Civil Rights Acts is still a puzzle in our law. Or it remains a puzzle for people who persist in taking seriously that question about the constitutional ground for the reach of federal authority. For Voegeli, that kind of concern expressed in the past by Barry Goldwater and the Southerners seems so refined as to be deeply implausible in explaining their motives. And it seemed to make little contact with life as it was actually lived in this country.
But even if these people were grandly mistaken, were their concerns here to be ridiculed as illusory or even corrupt? In our own day, we find people affecting to be deeply worried about the erosion of constitutional rights when the government conducts a warrantless surveillance, tracking the patterns of phone calls in the search for terrorist networks, even without listening into the conversations. I think myself that these critics are wrong and wrongheaded. They pose a claim of privacy overly precious, overly selfish, against the constitutional obligation of the government to protect lives. But it is curious that, no matter how feckless and silly these constitutional claims may be, they are not treated dismissively even by those of us who think them wrong. That people may be sensitive, even overly sensitive, to the terms of constitutional principle on which they live is a matter we can take seriously, even when we think they are egregiously wrong. Yet, if we can accord a certain respect to these people, does it really require that much flexing of imagination to consider that some of those conservatives of the '50s might have borne a concern, comparably earnest, for the limits on the reach of the State, and that their concerns did not deserve to be dismissed with an edge of contempt?
There is finally, in the very presentation of Voegeli's piece, a striking fact that should not go unremarked. The essay is offered as a lead essay in a conservative journal; it is an essay that raises the most serious moral critique of American conservatism running back to the 1950s; and the essay has been welcomed and presented in a journal under the editorship of Charles Kesler. Kesler became a dear friend of Bill Buckley, welcomed in the inner circles of the family, and indeed he was with Bill not long before he died. As a young writer, contributing to National Review, he praised Harry Jaffa and the moral perspective that Jaffa, with his Straussian lens, would offer on American politics. Charles was welcomed within Bill's household precisely because Buckley had opened himself to what Jaffa, so brilliantly, was teaching. Bill had made it clear that the Jaffaites had a critical standing within that conservative movement he had broadened and shaped. And as members of the family, they had an undeniable place now within that large family quarrel over the soul of conservatism in America. Whatever could be said, then, about Bill's missteps, or his misjudgments, in his younger days, we cannot take those early days as the defining marks of the conservatism that he managed to bring forth for our own day, with his gifts of civic friendship and his own, matured judgment.
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by William Voegeli
appreciate the careful attention given to my essay by Professor Arkes. I might be flattering myself—or I might be simply missing the point—but his letter strikes me as adding important details and context to the sketch I drew in that essay, rather than erasing some of its lines to draw new and better ones. That is to say, there's nothing in Arkes's letter that I really disagree with, and I take him to be saying that he found my argument to be incomplete rather than incorrect. I can easily accept that criticism, since my essay was not meant to be "the last word spoken about Bill Buckley," nor to treat the opinions Buckley expressed about civil rights between 1955 and 1965 as conservatism's "defining marks."
One point deserves clarification. Prof. Arkes seems to be ascribing a harsher tone than I intended to my treatment of conservatives' anti-Big Government arguments against the civil rights agenda. I did not mean to ridicule their concerns about expanding government's powers as illusory or corrupt, or to dismiss those concerns with an edge of contempt. Rather, I tried to convey that the principles conservatives invoked were deeply held and serious, rather than cynically embraced to defend an indefensible policy preference. I agree with Arkes that the constitutional grounds for the federal government to correct the abuses the civil rights movement placed on the national agenda are a "puzzle," and that the need for "some workable limits on the reach of federal power" remains a very important concern. The most critical thing I tried to convey about the civil rights era conservatives in this connection was that too many of them treated the constitutional reasons to reject civil rights laws as sufficient reasons to disregard civil rights problems. This dereliction was, as Prof. Arkes contends, a perversion of the Burkean disposition, and a "grievous failure" of practical wisdom.
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For Correspondence on this essay, click here.