Book Review

Unfinished Business: A Civil Rights Strategy for Americas Third Century

by Clint Bolick

Pacific Research Institute for Public Policy, 1990 159 pages*

Reviewed by William B. Allen

 

Winston Churchill and George Washington expressed them­selves similarly after their initial encounters with dangers in bat­tle. A curious detachment from danger to their own lives and a sense of excited pleasure marked their reactions. Washington ex­pressed it most succinctly: “I heard the bullets whistle [by me], and, believe me, there is some­thing charming in the sound.” These great statesmen reveal with clarity how important it is, in preparing for great moral crises, that the soldiers in such en­counters embrace the sights and sounds of battle as the handmaid­ens of victory and liberty.

When Americans undertook a decade ago to challenge the growing regime of racial prefer­ences, they enlisted in a great moral crusade for which they were ill-prepared. Setting off after Ronald Reagan on behalf of “white firefighters,” they had not sufficiently contemplated the re­ality that they would be fired upon by enemies whose bullets consisted of charges of “racism” and “self-interest.” Stung by the weight of the fusillade and seized with a mortal fear not only for themselves but for their cause, the anti-quota warriors fell back, determined to drop the cause of “white firefighters,” and set forth anew under the disguise of bring­ing “empowerment” to the disad­vantaged.

The Unfinished Business of civil rights is, in reality, Clint Bolick’s response to the suspicion that his prior book, Changing Course, had veered off course with a view of civil rights as reserved for minori­ties or the disadvantaged. Bolick admits as much in Unfinished Business: “Some commentators have criticized Changing Course for what they perceive is a sug­gestion that laws that arbitrarily restrict entrepreneurial opportu­nities are violations of civil rights because they have an adverse im­pact on blacks and other minorities.” Bolick finishes the business of Changing Course with the flat declaration that these are rather “violations of civil rights because the people affected are Ameri­cans.”

So much done, Bolick may next raise the question, What is the next step for civil rights? His re­sponse: emulate the early 20th century legal strategy of the NAACP, and use the courts to re-establish civil rights protec­tions that safeguard individuals instead of just groups. A sensible litigation strategy, highlighted by such notable cases as the Ego Brown case (the right to operate shoeshine stands in Washington, D.C. just like other open-air ven­dors), the Amaya-Crawford case (challenging the legally enforced exception of black children from IQ testing in California schools), and the Alfredo Santos case (the right to operate a jitney service in San Antonio against unduly re­strictive and antiquarian regula­tions), will chip away both at the barriers to economic liberty that undermine all other civil rights guarantees and also at the threats to equal protection of the laws contained in all race-based legis­lation and regulation.

Bolick is persuasive: A strategy of cultivating the “right” cases in order to challenge bad laws—­even such long-standing bad law as the Slaughterhouse decision (1873)—promises to increase the leverage of new civil rights advo­cates working against the inertia of the old civil rights lobby. Some critics will imagine that Bolick’s prescription (revitalizing the 14th Amendment) threatens to aug­ment the authority of the Federal Government in our lives by mak­ing courts perpetual censors of every act of legislation. I, on the other hand, cannot imagine how federal power might ever in­crease beyond the present level! Besides, it is precisely because this strategy opens all legislation and regulation more generally to judicial second-guessing that the spiraling costs of litigation—and especially of losing—will become an ally of fundamental rights by fostering avoidance behavior in legislatures and bureaucracies.

Nevertheless, Unfinished Busi­ness still must confront the di­lemma that this crusade cannot be so well developed as the coun­try requires, so long as “sympa­thetic plaintiffs” must be disad­vantaged. If it were not so unpardonably lighthearted in the face of the tragedy of black-Jew­ish relations, one could well dub  Bolick the new Jew of civil rights—that is, advancing the interest of his own people by means of a sincere attachment to the civil rights of a minority. What is rather required, however, is frank espousal of the rights of the strong, if I may put it so. The common sense inherent in the Reconstruction Congress’ defin­ing equality as guaranteeing the “same rights to blacks as white men enjoy” lay in the entirely rea­sonable assumption that white men would never neglect to as­sert and defend their own rights—their self-interest ought natu­rally to incline them to it. In this respect, however, the drafters of the Reconstruction era statutes and amendments were unfortu­nately in error. This embarrassing imponderable is surely the greatest mystery of our contem­porary dilemma.

I am persuaded that the unfin­ished agenda in civil rights does not end with persuading conser­vatives sincerely to espouse the claims of minority victims of discrimination. Still more impor­tantly, the grounds of common interest between minorities and others must be established, and that means that “white fire­fighters” must be no less readily defended than the disadvan­taged. It is even reasonable to suppose, in the circumstance, that any civil rights advocate who is bashful in the assertion of his own claims thereby renders his solicitousness for other folk sus­pect.

It must be said in all candor that “white men posing as the sav­iors of po’ black folk just ain’t gonna cut it anymore.” Our new statesmen can earn respect for their efforts only when they can stand up and shout, like the American Revolution heroes, “I got my rights.” Those are the kinds of souls other folk, all kinds of folk, are willing to go into bat­tle with, for such men fight with a fearless awareness that their own fates are at stake. At the U.S. Commission on Civil Rights I have often reflected that the too rare presence of such allies makes that work nearly impossible, meaning that I might more wisely look elsewhere to carry on the unfinished business of civil rights.

W. B. Allen

 


* Published in Lincoln Review v. 10, no. 3 (Spring-Summer 1991):48-50.

 

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