Conservative Civil Rights
by Donald Devine
Issue 220– January 30, 2013
The Supreme Court was hearing oral arguments on the Fisher v University of Texas at Austin affirmative action case and out of the blue the conservative activist asked: you were there at the time, how do you explain why conservatives opposed civil rights in the 1960s, a moral failure if there ever was one? Young people ask the toughest questions.
He had been reading a book about the Civil Rights Act of 1964 rebuking the fact that Sen. Barry Goldwater and the conservative movement in general had opposed it. I explained that we feared the national government would abuse the great power over individual actions that this bill granted to the president and the courts. History proved we were correct. But we were wrong too.
There actually were three major civil rights bills in the period, in 1957, 1960 and 1964. Conservatives and Goldwater in particular mainly supported the first two. The 1957 Act was proposed by GOP President Dwight Eisenhower to provide equal access to voting for President and Congress, to prohibit racial intimidation, coercion or otherwise interfering with a national election. It gave the Attorney General power to issue injunctions and contempt of court orders, with fines and up to six months imprisonment. Federal judges were permitted to hear cases with or without juries if they feared the locals would be prejudiced. Conservatives did not like this abrogation of the right of trial by jury and additional restrictions that were added in the 1960 Act but most of them thought voting for national office and interstate violence were clearly national responsibilities, obvious privileges of citizenship, and mostly supported both of the early laws.
The 1964 Act went well beyond regulating government in the widely accepted areas of voting restrictions and interstate violence against African-Americans. Federal regulation was expanded from protecting only blacks to discrimination based on religion and national origin too. For the first time private discrimination was prohibited in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce (vaguely defined), to include all but private clubs (not defined). Discrimination in employment was extended even further to cover race, color, religion, national origin and sex, covering almost everyone. The Act further allowed non-federal cases to be removed from state to U.S. courts if a federal judge considered state judges or jurors potentially prejudicial.
The ’64 law thus expanded protection from government discrimination against a minority that had been held in slavery and lived generations thereafter under oppressive segregation laws to cover presumed discrimination in vast areas of private economic and social life - of groups representing a great majority of the nation, many with weak or no historical claims to actual harm. This vast expansion of national power shocked the new conservative movement that had been founded on the idea of protecting individual and local freedom from the excessive governmental intervention of an expanding national welfare state. The theme of Goldwater’s 1960 classic book, Conscience of a Conservative, was to resist the encroachment of national government economic and social regulation against personal and state liberties, which, however, he still believed was compatible with supporting the two earlier early civil rights bills.
His position at that early date was complex: “I am in agreement with the [anti-racial segregation] objectives of the Supreme Court as stated in the Brown decision. I am not prepared, however, to impose that judgment of mine on the people of Mississippi or South Carolina. . . . I believe that the problem of race relations, like all social and cultural problems, is best handled by the people directly concerned . . . [and] should not be affected by engines of national power.” At the time of the 1964 Act, Goldwater vigorously opposed its private employment and accommodations sections, saying he could find “no constitutional basis for the exercise of Federal regulatory authority” over such private activity, claiming to have based his constitutional judgment on the advice of future Supreme Court Chief Justice William Rehnquist and Appellate Justice Robert Bork. His support for private desegregation was not pure rhetoric as Goldwater was instrumental in integrating the department store in Arizona that bore his family name.
The most important conservative of the day was William F. Buckley Jr. who said he would “applaud the efforts [of civil rights supporters] to define their rights by the lawful and non-violent use of social and economic sanctions which they choose freely to exert, and to which those against whom they are exerted are free to respond, or not, depending on what is in balance. That way is legitimate, organic progress.” Yet, he opposed Brown v. Board of Education, calling it “an act of judicial usurpation,” one that ran “patently counter to the intent of the Constitution” and was “shoddy and illegal in analysis, and invalid as sociology.” Buckley opposed the 1964 Act as “a federal law artificially deduced from the Commerce Clause of the Constitution or from the 14th Amendment.”
I too opposed the 1964 Act’s nationalization of private accommodations and employment that would make the national government the social arbitrator of every motel, hotel, theater, other public accommodation, every workplace, all government employment and its contractors, which activity was soon expanded to housing, elementary and secondary education, colleges and sports. Later the commerce clause and 14th Amendment were expanded into abortion, marriage and even hot dog stands. On the other hand, I was instrumental as part of a group of conservatives in applying private pressure to integrate a hotel in Florida in 1963.
The overwhelming majority of conservatives at the time believed slavery, legal and coerced segregation and denial of voting to African Americans were moral evils. But we believed that expanding the 14th Amendment and the commerce clause to give the national government such broad power over private activities vaguely described as “discriminatory” would be counterproductive in the long run. Today a half century later when nearly everyone would agree racial discrimination has decreased enormously, the number of claimed discrimination cases continues to rise. Even the single unprotected group, white males, now claims reverse discrimination. After fifty years of government enforcement, racially distinct neighborhoods and schools are still the norm. With all of the supposed help of racial preferences black unemployment, incarceration, single parent family, welfare, and poverty percentages are often higher than before the 1964 Act.
If the more restrictive “privileges and immunities” protections rather than the expansive interstate commerce and “equal protection” powers were used as constitutional reasoning perhaps support would have been higher. There can be positive discrimination, such as with the historic black colleges. Perhaps things would have turned out differently if civil rights tactics were not changed from boycotts and other private remedies that conservatives supported to more violent confrontation – on the other hand, conservatives generally were not leading the non-coercive demonstrations or boycott campaigns when they were the main tactic used. There might have been more support even for preferences had Justice Sandra Day O’Connor’s reasoning been offered up front that some racial preference for blacks (but not the other groups) could be justified even by bending basic principles but was necessary for a set period as a means to remedy the terrible historical treatment.
Conservatives were right about the problems that lurked within the 1964 Act because the reasoning used to justify it had no constitutional limits to its possible future abuses. “Just ask the only black on the Court today. It is widely expected that the Supreme Court will unambiguously finally outlaw state college racial preferences in the Fisher case to dramatically make the point that things have gone too far. But conservatives were wrong back in the 1960s to not have been as passionate about the freedoms denied to their black brothers and sisters as we were to the lesser limits on our own freedoms.
Donald Devine, the editor of ConservativeBattleline On Line, was the director of the U.S. Office of Personnel Management from 1981-1985 under Ronald Reagan and is Senior Scholar at The Fund for American Studies.