Robert Byrd's Finest Hours

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by Myles Kantor

I was waiting for it to happen. Amidst conservatives' legitimate objections to media self-censorship of Robert Byrd's "white niggers" comment on Fox News, I was waiting for someone to bring up his opposition to the 1964 Civil Rights Act.

The excellent Michelle Malkin accurately notes that if Byrd were a Republican, "Maxine Waters and Ralph Neas and Julianne Malveaux and Al Sharpton and all the other left-wing bloodhounds who sniff racism in every crevice of American life would be barking up a storm."

After discussing Byrd's former membership with the Ku Klux Klan, Malkin writes, "The ex-Klansman later filibustered the landmark 1964 Civil Rights Act – supported by a majority of those u2018mean-spirited' Republicans – for more than 14 hours." She continues as if to hammer the final nail in his coffin, "He also opposed the nominations of the Supreme Court's two black justices, liberal Thurgood Marshall and conservative Clarence Thomas."

Let's examine these supposedly damning positions.

Theoretically, federalism and property rights are conservative values. American conservatism values the role of the private sphere and the separation of powers between federal and state government enshrined in the Tenth Amendment.

Titles II and VII of the 1964 Civil Rights Act transgress constitutional and proprietary norms. The rather Democratic (understatement mode on) E.J. Dionne Jr. notes how "the Civil Rights Act of 1964 consciously overrode both states' rights and property rights." (Barry Goldwater courageously underscored the revolutionary centralization entailed by Titles II and VII, breaking ranks and voting against the Civil Rights Act. For this principled and appropriate stand, Walter Lippmann and other thoughtless individuals maligned him as a segregationist.)

Malkin's description of the Civil Rights Act as "landmark" indicates endorsement, although that adjective in its most literal sense captures the legislation's significance. It was landmark in the same way that the Alien and Sedition Acts or Reconstruction Acts were landmark.

Senator Sam Ervin objected to Thurgood Marshall's nomination to the Supreme Court on the grounds that "Judge Marshall is by practice and philosophy a constitutional iconoclast." Marshall's tenure on the Supreme Court regularly validated Ervin's assessment. Whether in misrepresenting the death penalty as inherently unconstitutional (Furman v. Georgia) or promoting a constitutional right to trespass (Amalgamated Food Employees Union Local 500 v. Logan Valley Plaza), Marshall exemplified the worst kind of oligarchic policymaking through adjudicative pretense.

Thus, Byrd's opposition to the Civil Rights Act and Marshall's nomination suggests constitutionally vigilant conduct, not invidious pigmentary passions. It's unfortunate that he didn't support Clarence Thomas's nomination – the finest justice of our era – just as it's unfortunate that his stands against constitutionally corrosive policies and persons are slanted to the worst angle possible.

Byrd's appearance on Fox News was one of his less noble hours; his aforementioned votes were two of his finest. Conservatives most of all should appreciate this.

Myles Kantor lives in Boynton Beach, Florida.

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