Are we destined to rehash the same debates over and over? On winning the senate primary, Rand Paul walked off the stage and directly into his mouth, igniting a firestorm when he suggested that the Civil Rights Act of 1964 is unconstitutional and that he would not have supported it. Let’s put aside the fact that his reaction was the result of a cheap setup on the part of a radical leftist masquerading as a journalist. Let’s also put aside the boneheadedness of Paul’s staff’s having sent him right out of the box into the lion’s den. That, I take it, was simply the hubris of those who know they are a lot smarter than everyone else. Underestimating Rachel Maddow is a sure way to get shredded. And Paul was. We can even put aside the tone deafness of Paul’s reaction but what he did show is why you should never take legal advice from a doctor.

But what of his position on this issue? The Civil Rights Act of 1964 followed the Civil Rights Acts of 1957 and 1960, each more expansive than the last. With the exception of southern Democrats, conservatives, in general, supported all three of the acts, Barry Goldwater’s having voted for both the 1957 and 1960 versions. He supported most of the Act of 1964, as well. His opposition was to Sections II and VII, those having to do with public accommodations and employment.

His opposition was principled. It was not a reflection of racism. It was based on his view that the Constitution did not allow for federal micromanagement of interpersonal relations and private businesses. His was a strongly federalist view based on a firm understanding of and commitment to the Tenth Amendment, which reserves to the states all powers not specifically granted to the federal government by the Constitution. It was a correct view of the original constitutional paradigm that gave substantial autonomy to the states and recognized that state government is the primary seat of sovereignty in our constitutional federal system. It was also a correct view of constitutional limitations on federal power and the exclusive power of states to regulate internal state businesses. It is certainly an arguable position based on the state of Commerce Clause jurisprudence and one currently advanced with credibility by conservative lawyers and legal scholars.

Perhaps a little background is in order. The Constitution provides that the federal government has certain, delimited delegated powers. The so-called “Commerce Clause gives the federal government the right to regulate interstate commerce. The original intention of that clause was to prevent states from charging one another tariffs for the shipping of goods across state lines or preventing their shipment from one state to another. In 1937, however, the Supreme Court, in an anxious search for a means of upholding New Deal initiatives, settled on a misconstruction of the Commerce Clause that it has expanded ever since. It decided that the federal government has the power to regulate anything that touches or affects interstate commerce. Out of that expansive interpretation of the Clause has grown virtually all federal regulation. So vast is the interpretation that the Court has held the purely intrastate growing of food for personal use “impacts interstate commerce” and can be regulated by the federal government. It has held that the federal government can regulate the treatment of migratory birds – animals that have no impact on commerce – because they cross state lines and “could” impact interstate commerce.

Until 1937, no one believed the federal government had the power to regulate activities having a purely intrastate impact, such as the serving of food or hiring of employees for businesses having only an intrastate presence. The regulation of that sort of activity was considered a uniquely state activity, much like the issuance of driver’s licenses and health rules governing restaurants.

That was why Goldwater voted against the Civil Rights Act of 1964. He believed that the Tenth Amendment prohibited federal impingement on state prerogatives with respect to education and the regulation of intrastate business and that the Constitution provides no basis for federal regulation of purely intrastate commercial activity. It was his view that the regulation of education, employment and public accommodations was not within the constitutional power of the federal government. It was also his opinion that the Act represented a huge expansion of federal power and authority, something he opposed as a threat to liberty. He was right about that, too.

Goldwater was wrong to vote against the Act, though, but for all the right reasons. There continue to be constitutional litigators who hope to move the Supreme Court back in the direction of a proper, restrictive reading of the Commerce Clause and the Court took a step in that direction in the mid-‘90’s in United States v. Lopez. There are also good and credible scholars who continue to attempt to revitalize the Tenth Amendment. It was legitimate constitutional concerns that motivated Barry Goldwater to vote against the Civil Rights Act of 1964 nearly fifty years ago.

There are times, though, that rigid constitutionalism must yield to greater notions of liberty. I have, in these pages, explored the foundations of American conservatism. Like the founding, it begins with individual freedom. A commitment to its protection must inform every public policy judgment.

The movement for civil rights was the great moral imperative of the second half of the Twentieth Century. We had, as a society, systematically oppressed an entire race of people even since their emancipation a hundred years earlier. We denied them jobs. We denied them education. We denied them admission to colleges. We refused to serve them in restaurants. We interfered with their right to vote.

And we wondered why they were mad.

We allowed, indeed, promoted, a moral evil and it needed to be addressed. A nation cannot long survive half slave and half free and the fact that we tolerated this sort of treatment of any of our citizens, much less ten percent of them, was not acceptable.

Sometimes a nation must stand up for its most sacred principles even when other considerations might seem to conflict with them. Freedom is too dear; liberty too important to be sacrificed on the alter of form. We needed to redress a grievous wrong and the solution called upon the best in us and demanded flexibility.

Barry Goldwater was truly the great man of conservatism. He was its first major champion and defined its ideas, purposes and goals. He is a man who deserves veneration for his insight and his tremendous integrity. There was no guile in this man; not one atom of dishonesty. But we are all imperfect. And so was he.

Conservatives were AWOL when human freedom was at stake. We were tangled up in minutia and technical details and refused to see the greater purpose. We, who stand for individual rights; we for whom liberty is a sacrament; we who have based our lives and philosophy on the sanctity of the individual should have been at the vanguard of this great crusade. Instead, we ceded it to those least devoted to its fundamental premise: freedom. We let those who stand for statism; those who define oppression; those who have been responsible for the greatest diminution of human freedom and dignity in human history, wrap themselves in the trappings and suits of liberty and take credit for its advancement. Just imagine the bizarre and revolting vision of Stalinist pamphleteer Pete Seeger singing of freedom!

Conservatives have much for which to answer.

I am not yet old, but I attended segregated schools. I went to restaurants that would not serve black people. We drove through a ghetto to get to our all-white country club in Northern Virginia. Blacks could not live in our neighborhood. It was not that long ago. It was a wound that had to be mended and human freedom is more important than technical interpretations of constitutional theory.

So, Rand Paul is wrong to pick at that scab and ignore the moral imperative that demanded action. Goldwater himself recognized it in subsequent years and while he stuck true to the constitutional principle involved, acknowledged that the greater good demanded a less rigid view.
Rigidity, though, is the problem with Libertarianism and that is how theory can lead to injustice. Indeed, it quite often does. That, too, is why Libertarianism, in so many ways, has more in common with leftism in its manner and premises than it does with conservatism. It grows out the same theoretical paradigm and leaves no place for experience.

It is time to put this discussion to rest once and for all. Until it changes by further Supreme Court action, the state of constitutional jurisprudence is that the federal government, through its commerce power, has the power to regulate virtually any economic activity. It can, through the Equal Protection and Due Process Clauses of the Fourteenth Amendment which makes them applicable to the states, prohibit discrimination on the basis of race, regardless of the Tenth Amendment.

But most important, it was right. It was right to prohibit commercial discrimination on the basis of race. It was right to prohibit discrimination in employment on the basis of race. It was simple justice. It was about human freedom. It was about human dignity. And it was the right thing to do.

Author: JWH