For a Constitutional Conservatism: An Open Letter to Roger Clegg

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I read with interest your
proposed speech for President Bush on affirmative action
Your points about how affirmative action has perverted justice and
contorted equity are classically conservative, indeed cogent; but
there remain a couple of problematic assertions that clash with
conservative tenets.

u201CWe have made enormous strides in the last generation,
however, to make that dream [the American Dream] – the dream that
Martin Luther King Jr., had – a reality: to make real the words
in the Declaration of Independence that all men are created equal,
and the freedom that thousands of Americans fought and died for
in our Civil War.u201D

Leaving aside the rectitude of the Confederacy's
conquest (would
have suppression of secession been appropriate had a state seceded
for abolitionist reasons?
), this portrayal of Martin Luther
King, Jr. is as cosmetic as it is cordial. While King has attained
an iconic prestige among today's conservatives, this enchantment
points less to King's conservatism than conservatives' myopic consideration
of him.

James Madison observed in Federalist No. 54 that
u201CGovernment is instituted no less for protection of the property
than of the persons of individuals.u201D Martin Luther King, Jr.'s
advocacy reflects a chronic antagonism to this sound affirmation.
Whether in endorsing the sit-ins that conflated trespassing with
promoting justice, spearheading anti-discrimination legislation
(more on that later), or making socialist prescriptions, King's
was an essentially radical enterprise – albeit one adorned with the
rhetoric of the Founders. (See Michael Eric Dyson's u2018America Must
Move Toward a Democratic Socialism': A Progressive Social Blueprint,u201D
in I May Not Get There With You:
The True Martin Luther King, Jr.) King's final presidential
address to the Southern Christian Leadership Conference called for
a guaranteed income, full employment, and u201Ca broader distribution
of wealth.u201D Suffice it to say these are not the sentiments of a

u201CI know that discrimination still exists. But,
unfortunately, there will always be some discrimination. And I do
not think that the best way to fight bias is with more bias. We
have laws on the books that prohibit discrimination, and I pledge
to you that I will aggressively enforce them and, where necessary,
strengthen them.u201D

I assume this pledge would entail enforcement
of laws such as Title II, Title VII, and the Fair Housing Act.
Surely these sacred cows have overwhelming support in the Republican
Party, yet they represent nothing less than a revolution against
constitutional government and property rights.

When Congress attempted to nationalize anti-discrimination
policy in the 19th century, the Supreme Court appropriately
invalidated this transcendence of purview. Federalism means reserved
powers and a finite national mandate, which precludes the usurpation
part and parcel of congressional anti-discrimination policies.
That distant, relatively oligarchic legislature has the authority
to criminalize discrimination in service, employment, and housing
as much as it has the authority to pass a national rape statute
or a Gun-Free School Zones Act – that is, none. Madison noted in
Federalist No. 45, u201CThe powers delegated by the proposed Constitution
to the federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite.u201D One
doubts he and the framers envisioned those u201Cfew and definedu201D delegated
powers including the proscription of various forms of discrimination
in the workplace and other private spheres.

Indeed, Title VII and its ilk may be construed
as a perpetuation – granted, with a more wholesome faade – of the 1798
Sedition Act, which criminalized certain forms of speech. This
egregious arrogation of reserved powers incensed, among others,
Thomas Jefferson. u201C[I]f those who administer the general government be
permitted to transgress the limits fixed by that compact, by a total
disregard to the special delegations of power therein contained,u201D
he wrote in the 1799 Kentucky Resolution, u201Cannihilation
of the state governments, and the erection upon their ruins, of
a general consolidated government, will be the inevitable consequence.u201D
Imagine what Jefferson would have thought of Title VII!

To exacerbate matters, anti-discrimination laws
also emasculate proprietary, contractual, and associational liberties.
As Richard Epstein observes, u201COn any reading, private property entails
the right to exclude others from one's premises'; accordingly, u201CFreedom – of
speech, association, and contract – carries with it the idea that
the right to exclude or include can be exercised for private reasons
that need no validation by any public bodyu201D (u201CFree Association,u201D
National Review, October
9, 2000).

Although it may seem axiomatic, it warrants repetition:
American conservatism values property rights. Russell Kirk thought
the institution so important that he included u201CPersuasion that freedom
and property are inseparably connectedu201D as one of his six canons
of conservative thought. Today's conservatives are alienated from
this indispensable truth.

The ugliness of religious and racist discrimination
is indisputable, but that does not entitle government, much less
the federal government, to coerce association and gut proprietary
discretion in promotion of a racially or religiously harmonious
society. (Ironically, government's coercions often have just the
opposite effect, akin to affirmative action's intensification of
racial polarity.) Let us be preoccupied with promoting a free society; and yes, in a free society individuals
may exercise their proprietary, contractual, and associational rights
in repugnant ways, just as freedom of speech entails tolerance of
neo-Stalinist tripe a la u201CHo Chi Minh was a heroic freedom-fighter.u201D

Kristol wrote during the litigation-laden aftermath of last year's
election, u201CMr. Bush has run as an apostle of compassionate conservatism.
But the present crisis suggests that a revival of constitutional
conservatism is the more urgent and important tasku201D Kristol is right,
and the current anti-discrimination regime and veneration of Martin
Luther King, Jr. – two decidedly related phenomena – stand
athwart this revival.

8, 2001

Kantor [send him mail]
and lives in Boynton Beach, Florida

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