When last I wrote on this topic, I was taking a pretty dim view of the “1619 Project,” which is being undertaken by the New York Times to rewrite the history of the United States as being all about “racism” and slavery.
Since then, other commentators have weighed in, and some of what they’ve written has reminded me of the invariable Trump Effect: i.e., the effect wherein either Trump, or the reaction to Trump, exposes great truths that we need to see and grapple with. This usually comes about in a way that frays a lot of nerves.
That’s because the truths we have to confront are about settled, complacent ideas that as often as not have been slowly killing us. Those ideas are conventions adopted over the last 100 years, most of which have some connection to what I call the “Old Consensus”: the 20th-century compromise that sells out liberty more and more on the margins by turning law into regulatory process, and paying it, in a perpetual shakedown scheme, to not hurt us too much for now.
Will this presidential election be the most important in American history?
Law can be held accountable for outcomes, whereas regulatory process is always shifting goalposts. The effect of the Old Consensus was to leave us finding a new bill left on our tables every couple of years for the cost of being held at open-ended risk by a regulatory state.
And the source of power for that Old Consensus and its regulatory shakedown dynamic has been a set of thought conventions we adopted decades ago. Those conventions have ruled us for so long now that few people have any mental recognition that it’s possible to think differently. Yet our Founders, and generations of Americans, did think differently; on some matters profoundly so.
One of the conservative reactions to the 1619 Project highlights a convention that has great significance to our future as a republic with liberty, respected rights, and limited government. It’s an article by Philip Klein at the Washington Examiner, which lays out an important thesis: that the legacy of slavery in the United States has “made the case for limited government significantly harder to make.”
I say this thesis is important not because it’s an axiom we need to adhere to, but because it has been, empirically, central to our inability to resist ever-bigger government through the political process. We have basically accepted an idea that slavery in America, and then racial discrimination in its aftermath, were the result of the people not being governed and regulated enough. The implication of accepting that idea is that we cannot dispense with government regulatory power over the people in a host of matters, because to do so would be to invite conditions in our midst as unhappy and dreadful as slavery.
In the interest of brevity – and moving this along – I won’t rehash Klein’s argument here. Please be sure to read the entire article for yourselves. I will merely quote the concluding paragraphs to set the stage. Klein addresses the concept framed as “states’ rights”; i.e., the operation of the 9th and 10th Amendments to the Constitution:
[T]o this day, any arguments about states’ rights are inevitably tainted by their association with arguments made in support of Southerners who perpetuated slavery and then an elaborate system of racial oppression. Those who argue in favor of leaving more decisions up to the states are forced to grapple with the reality that for a majority of U.S. history, when states were left to their own devices, they denied liberty to millions of Americans — and changing things required federal intervention.
And he follows it up with this:
But on another level, expansions of federal power that were necessary to fight slavery and racial oppression created precedents that were then used to exert federal power in other areas: education, economic regulations, social welfare, and so on. The landmark Heart of Atlanta Motel Inc. v. United States case that upheld the Civil Rights Act of 1964 expanded the scope of the Commerce Clause, which has broad implications for federal regulatory authority.
The evils of slavery and the Jim Crow era, and their legacy, need to be studied and acknowledged in their own right. But if we’re going to have a broader discussion about the continued implications of slavery in 2019, then conservatives should recognize how its legacy has made the case for limited government significantly harder to make.
Now, I can already hear Philip Klein thinking over my thesis, stated above:
We have basically accepted an idea that slavery in America, and then racial discrimination in its aftermath, were the result of the people not being governed and regulated enough. The implication of accepting that idea is that we cannot dispense with government regulatory power over a host of matters, because to do so would be to invite conditions in our midst as unhappy and dreadful as slavery.
Reading carefully, he might object that I have shifted the proposition, from the federal government expanding at the expense of “states’ rights,” to the whole scope of government over the people’s lives expanding in general.
The garbled premise
And he’d be right. But that’s exactly the point. That, and not encroachment against federalism, was the most fundamental process at work as the “expansions of federal power that were necessary to fight slavery and racial oppression created precedents that were then used to exert federal power in other areas: education, economic regulations, social welfare, and so on.”
The first question about limitations on government is not which government should be taking action. It’s whether government should be taking action at all – and if so, what kind of action. Slavery doesn’t make that question less debatable. And it is high time we recognized that.
Slavery is in a key way the opposite indicator to what we have conceived it to be in the decades since the Civil War. The reason is very simple. Slavery, institutionalized, is the product of government.
Slavery cannot exist as an institution where it is not enforced by government.
No one has ever been rescued by government, from institutional slavery at the hands of an insufficiently governed people. By a change in the attitude or operation of government, yes; but not by enlarging the scope of government power. The scope of government power must have been large enough to begin with, for slavery to exist.
Institutional slavery is impossible without government having the authority and power to enforce it. One more time: Slavery has to be enforced by a government in order to be a perpetuated, sustainable institution.
The same was true to a significant degree of institutional race discrimination in the states after the Civil War. That discrimination was perpetuated through state and local governments. Socioeconomic historians like Thomas Sowell have made strong cases that local economic resistance to state-mandated discrimination was a powerful factor in much of the South in the early half of the 20th century. Racial animus was enforced, often against this natural resistance, through governments. Governments not only approved of (and in some cases required) things like separate public accommodations, but enforced racial employment discrimination on behalf of labor unions, among other measures.
This doesn’t mean there wasn’t a significant percentage of the people harboring racist hostility. There assuredly was. But it was largely because government could be used to impose mandates and enforce discriminatory practices that that hostility had such staying power.
Did government, even at the state level, need to have the scope and authority for such mandates? Did it need to be an authority some of the people could use against others for socially invidious purposes? What if government had instead been restrained from wielding such power?
Ungarbling the premise
Here is the thought project we need to undertake. First, let me state that I believe it was necessary to have a war, if that’s what it took, to end the institution of slavery in America. The reason is the moral urgency of the matter. It was intolerable at any point, if you will, to have it one more day.
Only in Britain and America was the subject treated on quite this urgent moral basis; slavery has been a human institution since before written records began, and still exists in some places. The United States is unique not in having had slavery, but in ending it so urgently and at such cost. But that was the approach that matched the gravity of the problem, however many thousands of years late humanity as a whole has been in recognizing it.
That said, however, slavery is sui generis – in part because few matters have the same gravity, but also in part because it cannot be institutionalized without government enforcement. Slavery is a government problem. Its existence is about what we empower government to do. In company with only one other, it’s arguably the government problem: the infallible test of whether government is exceeding its proper limits or not.
If a government can enforce the compulsion to involuntary servitude for its own sake – i.e., not as something incident to criminal punishment – then that government is exceeding the proper limits of government. (There is also a moral argument that convicts in prisons should not be required to work involuntarily, but that’s a contingent question. The clean, morally crucial proposition is about involuntary servitude where there is no pretext of any kind for incarceration.)
The other test is whether government can impose judgments on the people that favor death over life, where no crime is at issue. The authority to enforce institutional biases in favor of euthanasia and abortion are major examples. Setting up so-called “death panels” – expert commissions that would limit the people’s options for medical care based on a cost-benefit calculus – is a modern regulatory example.
This is the proper framework in which to talk about slavery as an issue relative to government power. It isn’t necessary to think of slavery and Jim Crow primarily in terms of the “states’ rights” argument over federalism. We have only adopted the convention of doing that, from an accretion over time of causes and effects in electoral politics.
The way to vault over the obstacle Philip Klein outlines – the difficulty of making the case for limited government – is to get back to something more fundamental: the question of what government is properly chartered for, based on what liberty is, and what law and armed enforcement are suited to achieve.
We are very badly in need of a thorough discussion of that question. Very badly indeed. Failing to have it is the source of our furious political divisions today.
Slavery did poison the context for that question in American politics. But it’s not, most fundamentally, because limited government involves premises about federalism. It’s not, most fundamentally, because limited government involves premises about what the people will do if government doesn’t have enough power to levy mandates on them.
It’s because slavery, coexisting with a constitution that outlined a limited government, obfuscated what the limited government question is really about.
Most fundamentally, limited government involves premises about what government is properly for, and what its means and methods are suited for.
Our Founders saw that far more clearly than we do. We perceive things now after a century of accepting unexamined, largely progressivist bromides about the nature and purpose of government. Encouraged by that acceptance, government has become big enough to, in effect, enforce slavery again. It does so, for example, by requiring the people to purchase a product – health insurance – just because we fog a mirror, and by requiring us to subsidize or devote our labor to a host of practices we may morally oppose, as the price of being permitted to remain employed or operate a business.
The Founders would recognize that immediately as involuntary servitude in all but name. It is we, seeing through the eyes of more recent conventions of thought, who are blind to it. There are other things we are blind to today, like the truth that government need not even know what our incomes are, much less tax them at percentage rates, in order to be funded, or to be executing its proper functions.
The only place to start for a meaningful debate on limited government is with what government is supposed to be. The Founders saw that; it was their signature contribution to political philosophy. We don’t see it. As Klein says, slavery is a big reason for our distorted vision today.
But the remedy is not to shrug before the politically malodorous embers of “states’ rights” and count it a painful loss. The remedy is to get back to the Founders’ project of clearing the decks on what government is for. Frederick Douglass, a mighty thinker, saw that clearly. The remedy for slavery was not government power at the expense of liberty, because enforcing slavery is a misuse of government – not a misuse of liberty.
So bring on the 1619 Project, with its implications for critical review of the American national drama. The Trump Effect isn’t going to lead us where the New York Times intends to go. The “racism” theme will be rendered inert in short order. We’re going to end up debating assumptions about government – not the people, not the provisions of the Constitution, but the nature of government itself – that we have desperately needed to question since at least the 1930s.
With such a debate, we can prepare ourselves for a new birth of freedom — such that government of the people, by the people, and for the people shall not perish from the earth. Let freedom ring.
