Conservatism and Civil Rights; Understanding Clarence Thomas; Chinese Influence; Judicial Supremacy

Conservatism and Civil Rights

William Voegeli is to be commended for his important and informative examination of "Civil Rights and the Conservative Movement" (Summer 2008). In the course of his insightful treatment of conservative views during the 1950s and 1960s—in particular those of William F. Buckley, Jr.—he poses a challenge to today's conservatives, 99% of whom now retroactively embrace the civil rights movement of the 1960s. Such a stance "makes sense only if there was at least one alternative way to achieve the same result without augmenting Big Government." Yet, he observes, it is "difficult to imagine…a solution to the problem of segregation in which the powers asserted by the federal government were both large enough to accomplish the task and small enough to satisfy conservatives wary about the growth of Big Government." But such a path did and still does exist in the 14th and 15th Amendments.

The 14th Amendment was written by radical Republicans who set out to alter fundamentally the relationship between the federal government and the states by providing an enforceable federal "check" on the three branches of state government. The Privileges or Immunities Clause barred state laws that violated fundamental liberties either by discrimination or generally, the Due Process Clause mandated that these laws be applied to particular persons by reliable procedures, and the Equal Protection Clause mandated that state executive officials extend the protection of these laws to all persons. With that amendment's Enforcement Clause as their constitutional warrant, these same Republicans went on to enact civil rights acts every bit as radical as those enacted in the 1960s. Indeed, the laws would have been even more radical had they not been impeded by Democratic filibusters in the Senate and (as was then permitted) in the House. Confronting continued Southern resistance, the Republicans then secured the enactment of the 15th Amendment, which was designed to be the ultimate voting rights act aimed at racial discrimination.

In a story too complicated to narrate in a letter such as this, all this constitutional and legal reform was systematically gutted by a Supreme Court bent on restoring the states-rights federalism that preceded the Civil War. Plessy v. Ferguson was merely the culmination of 20 years of judicial resistance to the amended text of the Constitution. The Justices succeeded so well in this endeavor that even the Warren Court in Brown v. Board of Education did not question their judicially constructed edifice. Many of these pre-Plessy cases are still considered binding precedents by the Court. So in upholding the civil rights acts of the 1960s, most of the Justices felt more comfortable employing New Deal Commerce Clause jurisprudence than reviving the 14th Amendment's Enforcement Clause.

Not coincidentally, distorting the Commerce Clause to advance the cause of civil rights also empowers the rest of today's "progressive" agenda. Crucial to the campaign against restoring the Constitution's original meaning is the perceived necessity to expand the federal commerce power to serve the end of civil rights, a necessity that results from a crabbed reading of the original 14th Amendment.

Regrettably, because conservatives and paleo-libertarians are today as ambivalent, if not as hostile, to the 14th Amendment's federalism-altering original meaning as they were in the 1950s, they are hard pressed to answer Voegeli's challenge. Their post-New Deal repudiation of "judicial activism" has blinded many to the radicalism of the Civil War amendments and disarmed them from explaining how a governmental civil rights agenda can be pursued without empowering Big Government across the board. Indeed, their professed fear of judicial activism has led them to endorse a judicial conservatism that empowers the very Big Government conservatives profess to oppose. Given what motivated their enactment, it should come as no surprise that the 14th and 15th Amendments provide an alternative way of justifying the federal enforcement of civil rights, while denying a plenary power in the federal government to do whatever it pleases.

Randy E. Barnett
Georgetown University 
School of Law
Washington, D.C. 

William Voegeli's notion that originalism and the civil rights movement were irreconcilable is a distortion. By invigorating the 15th Amendment, which had been allowed to lapse since the days of the Mississippi Plan of the late 19th century, conservatives might have insisted that Southern states cease employing ruses for preventing blacks from voting on the basis of their race. They might have insisted that the federal government put down the terror network that intimidated blacks out of registering to vote in large swaths of the South.

As we have seen since the adoption of the Voting Rights Act of 1965, enforcement of a program to restore blacks' access to the suffrage by enforcing federal law, would in the end have led to the abolition of segregation.

Kevin R.C. Gutzman
Western Connecticut 
State University
Danbury, CT

William Voegeli, who deserves respect as an astute political commentator in most matters, provides a distorted account of the complex history of the conservative movement and civil rights. The problem is not what he writes about the late William F. Buckley, Jr.'s condemnation of the struggle for civil rights in the 1960s, but what Voegeli leaves out. In important ways, Buckley stood outside of the conservative Republican tradition of defending black civil rights.

While neither Democrats nor Republicans, liberals nor conservatives, enjoy a completely spotless record on civil rights, conservatives within the Republican Party served historically as defenders of equal opportunity and civil rights. House Republicans such as conservative Hamilton Fish (R-NY) supported federal anti-lynching legislation in 1922, 1937, and 1940, only to have these bills defeated in the Senate by Southern Democrats. In 1934, Oscar De Priest (R-IL), the first black congressman elected in the 20th century and a staunch anti-New Deal conservative, unsuccessfully tried to integrate the House restaurant. In 1947, the Republican-controlled Senate, headed by Robert Taft, refused to seat notorious racist Theodore Bilbo (D-MS) because of intimidation of black voters in the 1946 election.

This defense of civil rights for blacks was more than symbolic. In 1957, President Dwight Eisenhower submitted a "full package" civil rights bill to Congress, which would have allowed jury trials for voter intimidation cases. The president was outraged when Senate Democrats, led by Majority Leader Lyndon Johnson, watered down the bill to make it nearly meaningless by establishing the Civil Rights Commission without enforcement powers.

The Civil Rights Act of 1964 would not have been enacted without the support of conservative Republicans, led by Senate Minority Leader Everett Dirksen. Although Senator Barry Goldwater opposed this legislation, major opposition in Congress came not from conservatives, but from Southern Democrats who generally supported Great Society welfare programs. In the Senate, 21 Democrats-half the Democratic caucus-voted against the bill.

Republicans fought for civil rights legislation on the basis of equal opportunity. Richard Nixon's administration instituted federal affirmative action, a policy which President Ronald Reagan refused to overturn.

By overlooking this record of conservative support for civil rights, Voegeli unwittingly provides ammunition to an extensive academic literature by the Left that depicts the conservative ascendancy in the last 50 years as a movement built on a racial backlash. Conservatives should not contribute to this distorted history by ignoring what should be a proud record.

Donald T. Critchlow
St. Louis University
St. Louis, MO

After reading William Voegeli's essay, I thought to myself, "there they go again." Voegeli's historical analysis focuses on a few individuals between 1955 and 1964, and ignores the long term and the broad diversity of the conservative movement.

In fact, many conservatives were (and are) classical liberal supporters of racial freedom. To focus on Buckley alone is to miss the larger movement and even to miss how Buckley and his wing of the movement changed over time.

From a classical liberal perspective, the Buckleyite wing of the movement was wrong on race because it promoted "affirmative discrimination" from the Nixon years to the present. Buckley, Reagan, and others had no problem with massive government set-asides for minorities. Establishment conservatives such as George W. Bush have fled from questions of race because they agree with the Left but can't say so. They offer big-government conservatism on race ("affirmative access," as Bush put it so Clintonesquely).

But other wings of the movement continued the classical liberal tradition of civil rights. The NAACP's founders included classical liberals Moorfield Storey and Louis Marshall-two super-lawyers who won important Supreme Court victories over residential segregation and "white primaries." These men were as laissez-faire on race as they were in opposing "Big Government."

The Old Right of the 1930s and 1940s fought Jim Crow, lynching, and racial injustice before civil rights was "cool." Anti-New Deal Republicans like Hamilton Fish (R-NY) and Robert Taft (R-OH) criticized FDR for failing to support anti-lynching bills, voting rights, and desegregation of the military. The conservative Chicago Tribune was the only major news outlet to investigate and denounce Japanese-American internment during WWII.

After World War II, anti-New Deal Republican Branch Rickey promoted civil rights through capitalism: he hired a black baseball player, Jackie Robinson, and described this as a "call from God." And on the godly side of conservatism, do not ignore the role Billy Graham played in fostering better race relations.

Into the 1950s, President Dwight D. Eisenhower played a crucial role in the civil rights movement and earned the praise of black civil rights groups (see David Nichols's splendid book on the topic). Ike had the support of midwestern conservatives such as Everett Dirksen in desegregating the military and the nation's capitol, and passing the first civil rights acts in decades.

The classical liberal tradition continues to the present in the opinions of Supreme Court Justices Antonin Scalia, Clarence Thomas, and John Roberts, and in Ward Connerly's heroic constitutional amendments. Compare Frederick Douglass's speeches with the writings of these men. They have a lot in common. It was Douglass, after all, who said "the Republican Party is the ship and all else is the sea."

Jonathan Bean
Southern Illinois University
Carbondale, IL 

William Voegeli over-generalizes about his subjects and about the Republican Party's "indifference" to the grievances of black voters.

It is not the case that National Review went along with Jim Crow solely to combat the New Deal. In the 1960s William F. Buckley, James Burnham, and Will Herberg all warned against the radical social direction in which the civil rights movement would carry the country. (Herberg, by the way, had supported John Kennedy for president in 1960, and Burnham was a self-described Rockefeller Republican.) Buckley argued that the political culture would be pulled toward the left irreversibly if large numbers of already radicalized black voters were mobilized with government support. Anti-Communist contributors Willi Schlamm and Gerhard Niemeyer went after Martin Luther King's Communist advisors, and there was certainly a general sense among NR conservatives in the 1960s that the civil rights cause was soft on the Communist danger then facing America and Western Europe.

Despite the now enthusiastic acceptance of the civil rights movement and all or most of its work by a transformed conservative Establishment, the warnings of an earlier generation of conservatives still merit attention. The immigration and voting rights acts of 1965 and the introduction of affirmative action by the Equal Employment Commission, created by the 1964 act, all came within 16 months of the passage of the Civil Rights Act. Soon afterwards women, Latinos, and others would become government recipients of set-asides and preferential treatment, in a civil rights crusade that has gone on, and been periodically accelerated, down to the present.

By the early 1970s, National Review had modified its once uniformly negative attitudes toward the civil rights movement, in the context of a leftward shift that the New York Review of Books had noted as early as 1970. Voegeli places the date of this shift well beyond the point at which it began, when he observes that Buckley in 1979 had "urged, grudgingly, a national holiday in recognition of King's courage."

I am also mystified by the incriminatory tone of Voegeli's comment that the GOP has to overcome "the suspicion that they are indifferent to black Americans' legitimate demands." What's a fellow got to do to accommodate his worst critics! It was the Democrats, not the Republicans, who in the 1950s ran an open and then another, less explicit, segregationist vice-presidential candidate. In 1964 it was Republican congressmen who voted for the Civil Rights Act with 90% of their votes, as opposed to the Democrats who provided only 50% of theirs. It was the Republican president, Richard Nixon, who supposedly angered blacks by making violent crime a campaign issue but who also openly introduced set-asides for blacks in the 1969 Philadelphia Plan. It is the "racist" George W. Bush who has filled his cabinet with minorities and appointed two black secretaries of state. Mr. Voegeli might be interested to know that GOP presidential candidate John McCain has been openly in favor of affirmative action in education since 1998. Is there something else he should be doing to reach out? He's already apologized profusely for not originally endorsing the King national holiday. But curiously the onetime segregationist Jimmy Carter did not have to lament his past in order to win the adulation of black voters and the civil rights Establishment.

Paul Gottfried
Elizabethtown College
Elizabethtown, PA

I am afraid that William Voegeli's subtle and almost serpentine essay is somewhat weakened by its use of William F. Buckley as a symbol and a symptom. Buckley—I realize with shock that I knew him for 30 years—was not a systematic thinker and, at least in his latter years, was wholly motivated, so far as I could tell, by status and insecurity. Thus for example his 2001 agreement with Michael Kinsley that the 1964 Civil Rights Act, was, on second thought, a good thing, sort of, doesn't need any more complicated an explanation than that Buckley wanted to appease a prince of the New Media, who had graciously allowed him to appear in Slate, and was anyway incapable of thinking his way out of the currently fashionable consensus.

What I take to be Voegeli's substantive point—that there really were drawbacks to the immense expansion of government power in the name of extirpating Jim Crow—is an important one that merits longer discussion. I would only add that the American elite's complacency about the results of what must be called the Second Reconstruction is misplaced. Firstly, it is not generally realized that black progress by many measures (for example, employment relative to whites) stalled after the 1960s. Secondly, the costs of integration fell, and are falling, almost exclusively on the white working class-not a pretty picture. Thirdly, the phenomenon of political correctness, which partly stems from the sacramentalization of the Second Reconstruction, threatens not merely liberty but also appropriate public policy in areas like education and immigration. In significant ways, the American Dilemma is as stark as ever.

Peter Brimelow
Washington, CT

As I read William Voegeli's piece on William F. Buckley, Jr., and the civil rights movement, I thought, "Come on, Voegeli, make up your mind. Was Buckley right or wrong?" I concluded that Voegeli's answer would be, "Yes." Then I decided that, given the record, Buckley and the conservatives probably got a more balanced treatment from Voegeli than they would, and perhaps will, get from a lot of people.

No responsible person can regret the progress made by blacks since the civil rights acts. But even suggesting that there might have been a better-or perhaps just a different-way risks obloquy. Nevertheless, I think it useful to examine what I take to be Buckley's real position because it reminds us of the limits of government, and remembering the limits of government is always useful.

In his essay, Voegeli quotes Buckley as saying in 2001 that he would vote for the civil rights acts if they were "out there today," and saying in 2004 that "federal intervention was necessary." But Voegeli overlooks the fact that only a few years earlier, in 1998, Buckley held that "the civil rights programs were a formulaic response to a real need and not by any means one that has proved as successful as an alternative means might have been." I think that statement is a better reflection of the position Buckley held through the years. Not much happened or was discovered between 1998 and 2001 that would have required a change in his opinion except, perhaps, just a little mellowing. He certainly mellowed in his opposition to state prohibition of tobacco: only last November, a few months before his death, he wrote that he would, if he had the authority, forbid smoking in America, notwithstanding that he would be violating his secular commitment to the free marketplace. He was dying of emphysema at the time.

Is it possible there was another way? We'll never know, of course, and Voegeli admits as much: "There is no way of knowing whether that train [Buckley's "organic" progress], running on those tracks, would have ever come into the station."

But what we do know is what the prodigious growth in government has produced. It is not too early to tell how blacks have fared since the onslaught of the Great Society programs, animated by the same government philosophy that produced the civil rights laws. The statistics on black illegitimacy and crime paint a grim picture. In 1960, the illegitimacy rate among blacks was 22%. Today, it's about 70%.

Voegeli quotes Jonah Goldberg, offering, in 2002, a "blunt" judgment on conservatives during the civil rights era: "Conservatives…were often at best MIA on the issue of civil rights in the 1960s. Liberals were on the right side of history on the issue of race."

Maybe so. But look at what Goldberg has to say today (in his book Liberal Fascism) about the Great Society programs:

The Great Society's racial meddling…yielded one setback after another…. In the decade after the Great Society…[b]lack-on-black crime soared in particular…. Economically, as Thomas Sowell has catalogued, the biggest drop in black poverty took place during the two decades before the Great Society. In the 1970s, when the impact of Great Society programs was fully realized, the trend of black economic improvement stopped almost entirely.

So: blacks seem to be doing badly and are angry. And whites are angry too, at least those who were victims of affirmative action or had to endure busing. Perhaps we should take another look at what "alternative means" there might have been. Is it conceivable that the "legitimate, organic progress" Buckley hoped for in 1960 could have produced a better result than the federal laws we got, "artificially deduced from the Commerce Clause or from the 14th Amendment"?

Even if the pathologies in the black community are the results of racism, isn't that a stronger argument for the position that you cannot change-because in 40 years we have not changed-society by fiat, even constitutional fiat, but only by an organic process? There may be a finite amount of social adjustment government can get out of the people by running them through the federal wringer, their resistance in this case having been heightened by the manifest willingness of the liberals themselves to institutionalize racial discrimination.

In an address to the Conservative Party of New York in 1964 Buckley said the U.S. was "still reluctant to accept the state as a sacramental agent for transubstantiating private interest into public good. Have you reflected on the course of postwar American history?" he asked. "[W]ith all its power, the Establishment has failed in its efforts to ease over to the federal government the primary responsibility for education, or health, or even housing."

There's been a lot of easing over since 1964. George W. Bush's No Child Left Behind Act has inserted the federal government into education as never before. And we are now so close-oh, so close-to federalized health care you can smell the formaldehyde. In addition, of course, we've had a hailstorm of federal subsidies and programs-various community redevelopment programs, Urban Renewal (nicknamed by no less than James Baldwin "Negro Removal"), Aid to Families with Dependent Children, food stamps, the Special Supplemental Nutrition Program for Women, Infants, and Children, and on and on and on. That is the price we have all paid for altering the constitutional architecture Buckley sought to preserve-which should make us appreciate, at least somewhat, his hope in 1961 that "when Negroes have finally realized their long dream of attaining to the status of the white man, the white man will still be free."

If slavery was worse than Jim Crow (which it was) but Abraham Lincoln could countenance slavery to preserve the Union and still be regarded as our country's second-greatest president (or by some as our greatest president) why can't the early Buckley and his conservative colleagues, who were willing to countenance Jim Crow a little longer for the sake of not destroying the constitutional architecture, be regarded, not just as principled, as Voegeli regards them, but even just a bit…Lincolnesque?

Buckley's initial opposition to the civil rights acts made the liberals unhappy. His 2001 and 2004 positions supporting the acts made many conservatives unhappy. Perhaps a 2009 Buckley position might have made them both happy:

I should have favored the civil rights acts given the real needs of 1964 and notwithstanding my contemporaneous misgivings concerning the possible damage to the constitutional arrangements. But in the light of what transpired I think rejecting constitutional decorum in the hope of progress not built on the good nature of the community would have been, unwisely, utopian.

That's the fusionist position.

Daniel Oliver
Washington, D.C. 

William Voegeli accurately portrays Martin Luther King, Jr., as a skeptic of a capitalistic system that benefited from the labor of African Americans while failing to guarantee economic and political benefits to these same black employees.

Voegeli misses the mark, however, in his attempt to tie Malcolm X's phrase "By Any Means Necessary" to King's life and legacy. Although King could be an extremely pragmatic leader, he was passionately committed to non-violence and loving one's enemies. More than once he called off marches when participants succumbed to violence. He did advocate civil disobedience to bring about the necessary creative tension for social change, but he refused to lead any movement associated with violence. For King, a just end was impossible without a just and loving means.

He called for a very active federal government to fight President Johnson's so-called "War on Poverty." At the same time, King regularly challenged his audiences to accept personal responsibility. The learned helplessness and passivity that at times resulted from the old welfare system were never a part of King's dream.

Dr. Troy Jackson
University Christian Church
Cincinnati, OH

William Voegeli replies:

Suppose the version of my essay on civil rights and the conservative movement published in the CRB had been, instead, a draft copy circulated to this editorial advisory committee. I approach their responses by asking whether I would have revised that version of the essay in light of their critiques.

The suggestions offered by Professors Barnett and Gutzman are ones that would have led to revisions. As they correctly point out, my statement that it's hard to imagine a solution to the problem of Jim Crow that would have ended it without alarming Goldwater conservatives fighting Big Government reflects a lack of imagination, either mine or the conservatives'. The road not taken, or even considered, was to reach back past the constitutional revolution of 1937, past Plessy v. Ferguson, to the original intent of the 14th and 15th Amendments. Doing so, Barnett and Gutzman argue, would have yielded a federal government that was both vigorous and limited. Instead, conservatives retroactively amalgamated the Republicans of 1865 with the New Dealers of 1935. (James Jackson Kilpatrick, a prominent syndicated columnist and frequent contributor to National Review, long insisted that the "Fourteenth Amendment to the Constitution, never having been validly ratified, cannot provide a valid basis for the mandate the Supreme Court proposes to inflict upon the Southern States.") The exploration of this road not taken would have added many paragraphs to an essay that was already quite long. A street sign, however, would have at least improved it.

I appreciate Professor Critchlow's kind words about my other writings; I admire his work as well. He and I will have to agree to disagree, however, about whether William Buckley and Barry Goldwater were central or peripheral to the story of the conservative movement from 1955 to 1965. His effort to minimize their significance strikes me as a misapplication of the "one man, one vote" doctrine. Most Republican senators did vote for the Civil Rights Act of 1964; many of them, such as Everett Dirksen, were reliably conservative on a range of other issues. I stand by my contention, however, that the conservative disposition from 1955 to 1965 is better reflected by Goldwater's vote against the civil rights bill and by Buckley's writings, than by the votes for the bill cast by Republican senators whose names are now known only to historians and political scientists. As for the opposition to civil rights from Southern Democrats, one of their leaders, Strom Thurmond, switched his affiliation to the Republicans a few weeks after the civil rights bill became law, a decision that is inexplicable if we rely on Critchlow's assessment: Thurmond would have been leaving the party relatively hostile to the civil rights movement in order to join the party that was on balance more friendly to it.

Professor Bean makes an argument similar to Professor Critchlow's. He says I focus on "a few individuals," like Buckley and Goldwater, thereby denigrating the importance of conservatives more receptive to civil rights, such as Billy Graham and Branch Rickey. Critchlow and Bean are both historians, while I am not. As such, they know better than I that accounts of what happened in the past that "everybody knows" to be true often turn out to be seriously flawed. Perhaps the history of the conservative movement that emphasizes the central roles of Buckley and Goldwater will prove to be one of those theories that is ripe for debunking. Until that new history is written, however, it seems safer for a layman like myself to stick with the standard accounts, which all emphasize Buckley and Goldwater's importance.

Bean further contends that the "Buckleyite wing" of the conservative movement has "promoted" and "had no problem" with affirmative action for the past 40 years. To accept this generalization requires ignoring a great deal of evidence to the contrary. The service of a determined opponent of affirmative action, William Bradford Reynolds, as Assistant Attorney General for Civil Rights during the Reagan Administration is one such fact. A bigger one is that Bean contrasts the capitulation on affirmative action by Ronald Reagan and George W. Bush to the "classical liberal tradition" upheld in the Supreme Court opinions of Justices Scalia, Thomas, and Roberts. As Bean must know, however, those justices were each nominated for the Court by one of the past three Republican presidents-Ronald Reagan, George Bush, and George W. Bush, respectively. Furthermore, Thomas and Roberts were both appointed to important posts in the Reagan Administration, ones that launched them into the federal judiciary.

Professor Gottfried makes an argument for one revision of my essay that has considerable merit. I noted that the two preoccupations of conservatives in the first decade after National Review began publishing were the Cold War and the effort to roll back the New Deal, and then went on to discuss conservatism's stance on civil rights entirely in the context of the latter. Gottfried rightly points out, however, that anti-Communism explains important aspects of the conservative reaction to the civil rights movement. My account would have been better if I had examined that part of the story, too.

Gottfried finds an "incriminatory tone" in one sentence-"Conservatives have spent half a century trying to overcome the suspicion that they are indifferent to black Americans' legitimate demands, and indulgent towards people who are blatantly hostile to blacks"-where none was intended. I was trying, rather, to account for the seemingly irreparable breach between blacks and a conservatized Republican Party. As Gottfried points out, nothing conservatives have done to repair this rift has had the intended consequences. To the list he offers we could add vouchers, empowerment zones, and the faith-based initiative. Gottfried seems to think I'm asking conservatives to grovel, when I'm really asking them to stop wishing away the consequences of positions and postures they embraced at a crucial moment half a century ago.

Peter Brimelow takes a position that is a variant of the one advanced by Professors Critchlow and Bean: William Buckley may have been an important conservative writer when he opposed the civil rights movement in the 1950s and 1960s, but by the time he said he would have voted for the 1964 Civil Rights Act (2001), or that federal intervention had been necessary to end Jim Crow (2004), he was no longer worth paying attention to. I disagree with this assessment of Buckley, but disputes about Buckley don't change the more important reality about the changes in conservatives' attitudes about civil rights. The 1964 Civil Rights Act would win handily, I submit, if its retention were to be decided by a secret ballot among the current staff of National Review, or the Heritage Foundation.

I suspect, further, that Brimelow (and Paul Gottfried) would vote against the law in that secret ballot. "In significant ways, the American Dilemma is as stark as ever," says Brimelow, suggesting that the costs of the civil rights movement's victory have outweighed the benefits. But in other, even more significant ways, race relations in America are better than ever. The Conservative Dilemma is that most conservatives welcome this change but regret the means by which it was brought about. I have no tidy way to resolve this tension, or even to think through it, but do believe conservatives need to grapple with it to understand their project and their country as well as they should.

Daniel Oliver thinks that Buckley came closer to resolving the Conservative Dilemma than I gave him credit for. He applauds the prudence shown by National Review conservatives in the 1950s and '60s, who "were willing to countenance Jim Crow a little longer" to preserve constitutional government. How long that "little longer" would have lasted is a hard question, however, and the civil rights movement's refusal to be placated by assurances that the check was in the mail is not easy to disparage. Whether countenancing Jim Crow and destroying constitutional government were mutually exclusive alternatives is another hard question. As Professors Barnett and Gutzman remind us, we need to consider the possibility that the abolition of Jim Crow, rightly undertaken, could have preserved and promoted constitutional government, rightly understood.

Where Brimelow ascribes the pro-civil rights statements Buckley made after 2000 to intellectual and character defects, Oliver, more gently, says they reflect only "a little mellowing." The fusionist position Oliver suggests, however, fuses less than it confuses. There are two possible ways to read the position Oliver imagines Buckley taking, and the one Buckley actually took in 1998. One way is to conclude that, wrapped inside the qualifications and ellipses, Oliver is saying Buckley was right in 1957 and wrong in 2004. This, I submit, is the opposite of the position most Americans, and even most conservatives, take today. It is opposite to my own conclusion. Nevertheless, while it does not really fuse Buckley's disparate opinions, it is certainly a clear position; Mr. Oliver's letter lays out the essential elements of an argument that the benefits of extinguishing Jim Crow do not outweigh the costs, social and constitutional, of the measures by which it was extinguished. Alternatively, however, it's possible to read Oliver as saying that the fusionist position is that Buckley was right in 1957, and right again in 2004, when Buckley said he'd been wrong in 1957. We may conclude the Conservative Dilemma is indeed a severe one if it leads to fusionism that lays waste to the law of non-contradiction.

Finally, I think that Dr. Jackson takes this sentence in my essay-"Though King and Malcolm X are usually recalled as opposites, the Franciscan and the militant, Buckley's argument is that the logic of King's position carried him closer and closer to the stance, By Any Means Necessary, associated with Malcolm"-too literally. The fault, however, is mine for not making myself clearer, rather than his for not being able to extract what I meant from what I said. His objection, then, would have led to a revision, one that did not call into question Rev. King's commitment to non-violence.

The point, better stated, is that those who make bright-line distinctions, as King did against the use of violence to advance a political cause, usually feel free to walk right up to the line. At the time of his assassination in 1968, Rev. King was planning a Poor People's Campaign intended to "paralyze the nation's capital" until the government enacted a sweeping program of economic redistribution. The paralyzing techniques-sit-ins, demonstrations, civil disobedience-were technically non-violent but massively, intentionally disruptive and, above all, flagrantly undemocratic. The people's elected representatives were to be harassed and intimidated into voting for an agenda their constituents had never endorsed or even considered. The seamless transition from trying to make every citizen a part of America's democracy prior to 1965 to elevating some citizens' demands above the workings of democracy after 1965, reminds us why so many conservatives had such grave misgivings about the civil rights movement. 

Understanding Clarence Thomas

Reading Wendy Long's essay, it is difficult to recognize the book we co-authored, Supreme Discomfort: The Divided Soul of Clarence Thomas ("Bearing Witness," Summer 2008). Long mischaracterizes key points, runs roughshod over nuance, and looks away from important facts, obscuring the complexity that many other reviewers have called the hallmark of our book.

Let's start with the Anita Hill imbroglio. Long says that our book "fails to grapple with fundamental points about the Hill tale that don't add up." But the book mentions some of the very things she cites: that the Yale-educated Hill followed Thomas from one job to another, and kept in touch with him periodically even after the alleged harassment. We also point out that many women were among Thomas's staunchest defenders.

But the book also mentions other facts that Long chooses to ignore: that as a young man Justice Thomas was familiar with pornography, and that he at times used crude language that was eerily similar to some of the things that Hill alleged. Also, some of Thomas's female subordinates viewed some of his actions as sexually suggestive.

When it comes to affirmative action, Long fails to acknowledge that Justice Thomas was a beneficiary of the policy. While it is debatable how much race mattered in his getting into Holy Cross or Yale Law School, race was among the factors that admissions officials considered. And race certainly played a part in virtually every job Thomas landed in his professional life, from his hiring as an assistant attorney general in Missouri to his appointment to the Supreme Court. The book does not attempt to diminish Justice Thomas with that fact; it is simply a fact-one that, fairly or not, is central to much of the anger directed at him. Interestingly, Long, like Thomas, seems to view affirmative action as synonymous with giving opportunity to the unqualified, which is a view we do not share.

Long goes on to say that the book repeats the "canard" that Justice Thomas is a "flunky" of Justice Antonin Scalia. All we can imagine is that she only skimmed that part of the book. The chapter in question is entitled "Scalia's Clone?" We answer that question by saying that while Justices Scalia and Thomas often vote alike, they have distinctive brands of jurisprudence. We point out that Thomas is less deferential to precedent and more committed to originalism than Scalia. We even quote what Justice Scalia told us in an interview on that subject: "It is a slur on me as much as it is a slur on him-like I'm leading him by the nose…. It's a slur on both of us. I don't huddle with Clarence and say, ‘Clarence this is what we're going to do.'"

It is understandable that Long would be eager to defend Justice Thomas, someone she once worked for and clearly admires. She also was part of the team that promoted his memoir. There is much to admire about Justice Thomas, a man whose intelligence and hard work were instrumental in his ability to rise from desperate poverty in Pin Point, Georgia, to the highest court in the land. It could only happen in America. But Justice Thomas's most committed supporters seem to want the story to stop there. They respond to any critical treatment of his life not through the high-minded debate they often extol in their rhetoric, but through distortion that seeks to minimize what was said about Justice Thomas in the first place.

But Thomas's life-like all lives-is more complicated than many of his boosters acknowledge. Fair-minded readers ofSupreme Discomfort can see that our purpose is explanatory, not accusatory. Somehow, Long misses that. One can only hope it was carelessness or blind loyalty that led her to her conclusions, and not something more insidious.

Kevin Merida
Michael A. Fletcher

Washington Post
Washington, D.C.

I was flattered that Wendy E. Long commended my book First Principles: The Jurisprudence of Clarence Thomas in her recent essay on Justice Thomas. I write this letter simply to mention that the conventional wisdom about Thomas is now much more positive than it initially, and unfairly, was. Of the books Ms. Long discusses, only the Merida-Fletcher book paints a negative portrait. This changing perception was brought home to me recently when I was asked to participate on a roundtable on Justice Thomas's jurisprudence at the annual meeting of the Southeastern Association of Law Schools. As one might expect at an event in which the attendees are overwhelmingly liberal, those who participated on the panel and those who asked questions from the audience tended to disagree with Thomas's jurisprudence. Yet, that disagreement was expressed both respectfully and thoughtfully. As my book documents at length, this is a significant change from the commentary during Justice Thomas's confirmation process and his early years on the Supreme Court. Of course, the Merida-Fletcher book indicates that, unfortunately, there is still an audience for ad hominem attacks on Clarence Thomas, but most people who have taken the time to read the opinions he has written in his 17 terms on the Court don't take those attacks seriously anymore.

Scott D. Gerber
Ohio Northern University 
College of Law
Ada, OH


Chinese Influence

Mark Helprin's unflinching look at China presents the sorts of facts that demand a new policy from Washington ("Rich Country, Strong Arms," Summer 2008).

The current policy began in the 1970s when an internationally weak United States searched for a counterbalance to the Soviet Union, cast China in the role, and paid full asking price to Beijing by cutting completely our ties with Taiwan. The authors of this policy, such men as Nixon, Kissinger, and Carter, believed they were creating a new balance of power that would endure indefinitely. They expected the then dictatorial government in Taiwan to make a deal with Beijing over the heads of its people, to incorporate the island into China. Most importantly, they were convinced beyond the possibility of dissuasion, that this rather nasty bit of Realpolitik would open the way to political liberalization in China and the blossoming of a genuinely cordial entente between Beijing and Washington. Unfortunately the authors of this policy misjudged the character of China and the staying power of the Soviet Union.

After the Red Flag came down over the Kremlin in 1991, the United States was left with a policy lacking a rationale. China was supposed to balance the USSR, but the USSR no longer existed. What was worse, far from balancing China, the new Russia turned into her major source of advanced weaponry and an increasingly reliable partner when it came to countering U.S. policies around the world.

The end of the Cold War (and the 1989 massacre at Tiananmen Square) should have led to a fundamental rethinking of our special treatment of China. Instead, these events led to a new rationalization for the old policy. The U.S. decided that China is destined, one way or another, to become the dominant power in Asia no matter what we do. So America would attempt to get on the same side as that rising power and stay there by co-opting China whenever possible, avoiding conflict of any kind, excepting China from the rhetorical human rights standards applied to other countries, continuing to trade, and attempting to foster intimate diplomatic relations, hoping against hope that maybe the regime would as a result change its hostile view of the United States.

The problem, as Helprin suggests, is that such an approach requires that we gradually sacrifice not only the interests of our allies (Taiwan, perhaps now Japan) but in fact our own interests. Satisfying China will require a United States vulnerable to Chinese military power and weak enough not to be able to play a major role in Asian politics-and we, for reasons not always tied directly to China, are well on the way to such a military and diplomatic posture.

Helprin is absolutely correct that we must build up our economy and our military. American industry does not need to relocate to China. The Japanese and Germans compete. Why not the United States?

The People's Republic is far more precarious than many realize. Many specialists (and ordinary Chinese) believe the present situation is unsustainable and, sooner or later, will change. That change is unlikely to be as peaceful as was the Soviet Union's collapse. It will be more like an earthquake, and we must begin to prepare ourselves.

We should work to solidify alliances with countries in the region that share our values (e.g., Mongolia, Japan, South Korea, Taiwan, Philippines, India, and to a considerable extent Malaysia and Indonesia, among others) and improve ties with other states worried about an expanding China (North Korea, Vietnam, and, potentially, the former Soviet States of Central Asia, and Russia herself). We need to construct an international system that like skyscrapers in Tokyo is earthquake-proof-so that the coming crisis in China can be contained there.

There is also a danger that while China's ascent continues, she may flex her new military muscles against a neighbor, with disastrous consequences. My greatest fear is that the Chinese government will become convinced that the United States and other powers are incapable of restraining her, or unwilling, or both, and therefore launch a war somewhere in the region to build national pride and give the regime some legitimacy. The possible targets for such an attack are found around China's entire periphery.

China might well start such a war, but I am convinced she could not finish it successfully: a "lightning" attack would move more slowly than expected; a "decapitation" of, say, the Taiwan government would fail and lead to escalation; "decisive" actions would yield confusion; unexpected players would move to secure their own interests in unanticipated ways. Chinese history is full of examples of unsuccessful uses of force, in which the adversary was grossly underestimated and China gave itself every benefit of the doubt. In today's Asia, bristling with the deadliest of weapons, the result of such a Chinese miscalculation could be a ghastly conflagration.

Arthur Waldron
University of Pennsylvania
Philadelphia, PA 

One reads Mark Helprin's brilliant essay with admiration for his stylish summary of China's rise and despair over the Washington foreign policy Establishment's failure to grasp that this rise even poses a problem. Democrats and Republicans alike take the view-hopelessly naïve in my opinion-that the Beijing regime can be coddled, cajoled, and occasionally (but only occasionally) hectored into becoming "a responsible stakeholder in the existing international order." In pursuit of this chimera we have sacrificed our markets, our capital, our technology and, to an increasing extent, our security.

Our current policy is naïve because China, unlike any other country, threatens to completely undermine the current, U.S.-dominated international order. Distracted by a ragtag band of terrorists, we have lost sight of the fact that China is a semi-terrorist outfit itself, a dictatorial regime that is extending its influence throughout the world by creating a network of like-minded dictatorships. Pick a tyrant at random, and you will find that his principal foreign backer is a Communist dictatorship that controls 20% of the world's population, an increasing share of its industrial capacity, and a rapidly expanding military, not to mention a huge and growing cache of nuclear weapons and the means to deliver them.

Iran's President Mahmoud Ahmadinejad is feted in Beijing and was allowed the rare privilege of addressing the Chinese masses on state television, assuring them that Iran's and China's interests were "identical." Although Ahmadinejad is a radical Islamist, all too ready to bash the United States and Israel, he maintains a strict silence on the persecution of his fellow Muslims in China's Xinjiang province. In return, China uses its seat on the U.N. Security Council to oppose sanctions against Iran. Even more seriously, Iran is reportedly being used as a conduit for advanced weapons and weapons technology from China that are finding their way into Iraq and being used to kill American soldiers there.

China's "global diplomatic initiative," as it is called, is aimed at co-opting or corrupting as many governments as possible, bending them to Beijing's purposes. From Asia to Africa to Latin America, Beijing is attempting to create a sphere of influence which pays tribute to China's preeminence, a world in which corrupt oligarchies rule and human rights are relegated to the dustbin of history.

Under President Obama we will see the decommissioning of dozens of warships and the deferral of any and all new weapons systems into the next election cycle. But even under President McCain we are unlikely to see a major build-up of the kind envisioned by Helprin-necessary to maintain not only America's national security but also the preeminence of our democratic principles in the world.

The phrase "rich country, strong arms," which Helprin takes as his title, was used in Meiji Japan, but did not originate there. As I recount in my book Hegemon: China's Plan to Dominate Asia and the World, it is the ancient Legalist credo. The Legalists, as it happens, were the world's first totalitarians, and their concentration of power into the hands of a ruling elite led to China's amalgamation into a single, monolithic state over two millennia ago. It concisely summarizes the goals of China's ruling elite today, a remarkable and disturbing instance of cultural continuity.

Steven Mosher
Population Research Institute
Front Royal, VA

Judicial Supremacy

It is always a pleasure to read Jim Stoner's work, and his review of my book, Political Foundations of Judicial Supremacy, was no exception ("Our Robed Rulers," Summer 2008). Let me take a moment to continue the conversation a bit. Stoner notes that in an earlier work I had criticized the "faulty assumption of judicial supremacy," but he now thinks I have made my peace with it. I must admit that my ongoing work on the history and politics of judicial review has unsettled some of my earlier convictions about judicial activism. I remain convinced that originalism is the proper guide for judicial interpretation of the Constitution and that courts should be deferential to the other branches when constitutional meaning is uncertain. I also remain convinced that plenty of important constitutional decisions can and do get made outside of courts, and that judicial supremacy is a problematic starting point for thinking about American constitutionalism. I am not content with a politics that delegates fundamental questions to judges and with politicians who renounce responsibility for making hard choices about basic political issues. But, for the reasons outlined in the book, I think that is where we find ourselves and that politicians have powerful incentives to continue on this course. Changing course requires exposing the fact that judicial supremacy is not an intrinsic part of the constitutional design but has "political foundations" and is contestable; holding politicians accountable for making their own constitutional judgments and acting on them; and forming political coalitions with a coherent set of constitutional principles so that it is in politicians' interest to act on their principles rather than hide from them. I'm not necessarily optimistic about getting to that point.

Keith E. Whittington
Princeton University
Princeton, NJ


James R. Stoner, Jr., replies:

I agree with Keith Whittington that this is a conversation worth pursuing. As I understand the history of American political development, a "reconstructive" presidency that could return judges to originalism while restoring vibrant constitutional construction outside of the Supreme Court-which Whittington seems to favor but is pessimistic about seeing any time soon-would still have to be prepared by smaller steps that cut a new path and thus indicate a new way, or in other words, that weaken incentives for politicians to support judicial supremacy and for judges to invoke it. Statutory reform of jurisdiction, standing, and remedies might do the latter; clear accounting of the costs of judicial activism might help with the former. Amidst all the talk of change, can this be tried?