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 conservative.
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
William 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.
June 8, 2001
