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Goldwater And Modern Constitutional Conservatism


Matt makes a good point here about how the founding hero of modern American conservatism was wrong about the most important issue of his time.  It’s worth noting as well, as you’ll see from this passage from Perlstein’s Before the Storm, that two of the people who persuaded Goldwater to stick up for apartheid and oppose federal civil rights protections were the first modern constitutional conservative to sit on the Supreme Court, William Rehnquist, and the Republican Party’s great constitutional martyr, Robert Bork.    Rehnquist was also a contemporaneous opponent of Brown v. Board, which can’t even superficially be characterized as being about a principled opposition to state coercion.

On Bork, a FrumForum poster recently wrote that Rand Paul was making other conservatives like Bork look bad:

For over twenty years conservative constitutionalists have held up Senator Kennedy’s tirade against “Robert Bork’s America” as the pinnacle of left wing political slanders of the right. How dare he say that conservative constitutional views would return us to the days of segregated lunch counters?

The problem here, of course, is that Kennedy didn’t say that “constitutional conservatism” per se would lead us to segregated lunch counters.   He said that this would have been the result of Robert Bork’s constitutional vision, which can find corroboration in the fact that while it mattered Robert Bork publicly (as well as privately) argued that the Civil Rights Act was unconstitutional.   As I’ve argued before, it’s odd that Kennedy’s speech has come to stand for unspeakable political slander, when every claim in it was in fact consistent Bork’s published views (granting that some of them had been repudiated in subsequent confirmation conversions.)

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  • Incontinentia Buttocks

    In our political culture, variations of the civility meme are often marshaled to suggest that any harsh accusation is slander, or that any two opposing camps who engage in equally harsh language are necessarily equivalent to one another.

    What gets (intentionally) lost in the shuffle is the truth.

    Kennedy spoke the truth about Robert Bork. That’s what’s most important. And the manner in which he spoke the truth about Robert Bork contributed mightily to Bork’s being denied a seat on the Court. And that was critically important, too.

    All the rest is commentary.

  • patrick

    I am not a lawyer or even an opthamologist so I am probably oversimplifying, but I was surprised to hear Rand Paul’s objection to the Civil Rights Act rested on his assertion of the federal govermnent’s interferance with private business is unconstitutional. While there are arguments about how broadly the commerce clause should be interpreted, it seems to me that the one thing the commerce clause allows for regulation of is…. commerce. I will grant that it was written to regulate interstate and international commerce, but that would include most business in our modern economy.
    So, how can a clearly stated enumerated power of the constitution asserted to be unconstitutional?

    • Bart

      Didn’t the commerce clause use the word “among” rather than “between” the States?

      • James E. Powell

        [The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States.

        I could be wrong, but I believe “between” is for two, “among” for more than two. I don’t think it’s a distinction with constitutional consequences.

        • Karl Steel

          I could be wrong, but I believe “between” is for two, “among” for more than two.
          Not necessarily. From the OED, s.v., “between” (prep and adv), def 13 By the joint action of, done by, shared in by, belonging to (two parties) jointly. (Sometimes said of more than two, when it is desired to mark the participation of all the parties more defintely [sic] than can be done by among; cf. 19.)
          relevant examples
          1785 MACKENZIE Lounger No. 36 They had but one pair of silk stockings between them. 1812 JANE AUSTEN Mansf. Park (1847) 160 We brought home six brace between us.

          19: In all senses, between has been, from its earliest appearance, extended to more than two. In OE. and ME. it was so extended in sense 1, in which AMONG is now considered better. It is still the only word available to express the relation of a thing to many surrounding things severally and individually, among expressing a relation to them collectively and vaguely: we should not say ‘the space lying among the three points,’ or ‘a treaty among three powers,’ or ‘the choice lies among the three candidates in the select list,’ or ‘to insert a needle among the closed petals of a flower.’
          relevant examples
          1755 JOHNSON Dict., Between is properly used of two, and among of more; but perhaps this accuracy is not always preserved. 1771 JOHNSON in Boswell (1826) II. 127, I..hope, that, between publick business, improving studies, and domestick pleasures, neither melancholy nor caprice will find any place for entrance. 1828 SOUTHEY Ess. (1832) II. 436 Between the prior, the boatmen, and a little offering to St. Patrick, he had not as much money left, etc.

          In sum, no argument relying on a hard and fast distinction between ‘between’ and ‘among’ is historically valid for originalist readings of the commerce clause. The point is that Congress can regulate interstate commerce and commerce with foreign nations.

  • DrDick

    Goldwater is indeed the godfather of the modern conservative movement and every bit as radical and batshit crazy as they are. Being old enough to actually remember him, the current efforts to rehabilitate Goldwater make me crazy.


    Patrick, good analysis for a non-lawyer. You are more qualified for the senate than Rand.

  • patrick

    @ GOCART

  • patrick

    @ GOCART

    Thanks, now if I could just learn to spell “interference”.

    • Hogan

      Not actually a job requirement.

  • I have a question about the general intersection of politics, the Civil Rights Act, and the concept of constitutionality. I think the lay conventional wisdom on this nexus is that since the CRA makes sense, it is therefore constitutional, because the Constitution is right on so many big matters like liberty and so forth, and the CRA is consistent with those things.

    Since I depart from originalism to a somewhat radical degree (perhaps), my chain of causal reasoning is more like, the CRA is right, it probably is unconstitutional, strictly speaking, and that is a better argument against the Constitution (in this limited arena) than it is against the CRA. To me it’s not surprising that the Fathers are worse at judging modern necessities than contemporary legislatures, but apparently that’s a big, big false premise to originalists, and also calling anything you favor unconstitutional is a big no-no in general.

    So, please — set me straight! Is there a legitimate reading of the “spirit” of the Constitution that allows one to call the CRA constitutional with a straight face? Or something? I feel like that whole process almost grants too much to the originalists, whom I strenuously oppose, and yet our entire judicial system is premised on trying to figure out if things are constitutional. I don’t quite get it, it seems to surrender too much prerogative to people who have been dead for 200 years. I need guidance on this.

    • DocAmazing

      Pick up a copy of The Constitution of No Authority by L:ysander Spooner, a big favorite of old-school libertarians. It makes the same argument you just did, but more comprehensively (and in floral 19th-c. language).

      • Huh. Interesting. I’ll try to get ahold of it. Thanks!

    • Anonymous

      Is there a legitimate reading of the “spirit” of the Constitution that allows one to call the CRA constitutional with a straight face?

      The constitution of 1789? Probably not. The Constitution of 1870? Yes, rather easily.

      • BillCinSD

        The Constitution of March 11, 1861 is also a no

    • David Kaib

      I think you are conflating “constitutional” with whether a claim can be justified by originalism. These are not the same thing.

      So, to answer the question I think you mean to answer, yes, there is an originalist case for the CRA, which can be found in Harlan’s dissent in the Civil Rights Cases. Granted, that is about the 13th and 14th Amendments and not the commerce power, but the reasons Congress gave are not necessarily relevant to whether the law itself is constitutional. Harlan is glorified today for (one line of) his dissent in Plessy, but interestingly his arguments on this issue get little attention. It’s unfortunate, because he was far better attuned to the purposes of the Civil War Amendments than his colleagues.

      When it comes to the commerce power, the answer is a lot longer, but in many ways the decisions to uphold the CRA were straightforward extensions of commerce decisions from the previous thirty years.

      • IIRC Congress cited Section 5 of the 14th Amendment as well as the Commerce Clause in the 1964 CRA; the Supreme Court (regrettably) just decided to uphold it on the latter grounds rather than overrule the Civil Rights Cases.

        • David Kaib

          You’re are right, but when it comes to the public accommodations provisions (Title II), it was narrower than for the 1875 CRA (which did not depend on any state action requirement):

          Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

          And Title VII relied on commerce alone.

          Of course, the SC’s continuing refusal to address these questions (“the enduring vitality of the Civil Rights Cases) just compounds the error.

      • I’m not sure I’m arguing that the definition of “constitutional” has to please originalists exactly, I just wondered if there’s any (let’s face it) bootstrapping among well-meaning liberals/sane people who want to support the CRA and call it constitutional too.

        I think you’ve persuaded me that the legal scholars who call the CRA constitutional are not just employing tricksy argumentation, which is the thing I feared/was asking. I’m reassured.

  • James E. Powell

    I place the constitutional objections to the Civil Rights Act in the same box as the constitutional objections to the federal income tax.

    They work with pundits and the public who have no understanding of the constitution or the supreme court decisions that are, as a practical matter of governance, part of the constitution in the broad sense of the term.

    They work because they give a cover of respectability and intellectual heft to an argument that is otherwise not only untenable, but unspeakable.

    • DrDick

      Well said, sir, well said.

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