Wednesday, February 27, 2013
My colleague, Professor Charles J. Reid, Jr., a master wordsmith and prominent scholar of medieval history, has been reborn of late as a vigorous advocate for what he calls “a robust American government.” In a blog post previously appearing on Huffington Post and now re-published in the winter edition of the St. Thomas Lawyer, Professor Reid calls for a much enlarged federal government with an even larger agenda.
More pointedly, Professor Reid accuses those of us who resist government encroachment of singing a “sickening refrain.” He labels the Reaganesqe question about the wisdom of reliance on the State as the answer to societal ills as producing “toxic words” that “inject poisons into the American body politic.”
And because Professor Reid advocates an über-activist vision of national government that he would task for “the betterment of men’s hearts,” I issue a warning about the perils of over-zealous faith in the State.Professor Reid begins with a greatest hits of America’s national government in the modern era — the Marshall Plan, the interstate highway system, the space race, all of which originated in substantial part as national defense initiatives in the wake of America’s military victories in World War II. This litany is well-stated — as far as it goes. Under the right circumstances and for compelling reasons, government can accomplish good works. And remember that the federal government of that period was exponentially smaller and the reach of law far shorter, leaving more room for non-governmental initiatives, intermediary groups, economic growth, and individual freedom.
Then Professor Reid takes his faith in the State to another level by advancing the use of government — not to invest in good works or even to promote good behavior — but to bring about right thinking in its citizens. And the government would accomplish this shaping of hearts and minds, not by the warm persuasion of human relationships, but through the cold coercive force of the law.
To support this vision of paternalistic government, Professor Reid adduces the example of the civil rights acts of the 1960s. To achieve “the betterment of men’s hearts,” he claims that the civil rights acts “required something that no prior legislative enactment had dared to seek — the banishment of hatred from the precincts of the human mind.”
As a matter of both law and history, Professor Reid greatly overstates the precedent. Title II and Title VII of the Civil Rights Act of 1964 do not enjoin enlightened racial thinking on the boss or the inn keeper. These statutes by their direct terms prohibit specific acts of discrimination in the particular categories of employment and accommodation. As one of the leading drafters of Title VII emphasized, “The man must do or fail to do something in regard to employment. There must be some specific external act, more than a mental act. Only if he does the act because of the grounds stated in the bill would there be any legal consequences.”
And leaders of the civil rights movement, while appreciating government as one important tool in ending oppression and opening opportunity, harbored no grand illusion about the salvific power of law and politics. The central goal of the civil rights movement was to remove the burden of segregationist laws and to obtain the targeted intervention of government to generate economic and educational opportunities.
To be sure, a civil rights act, like law in general can have a positive (or negative) educational effect. And the law certainly can improve the common good by directing actions and controlling behavior to better promote human thriving. Most importantly, law can ensure the framework that creates the civil space for people of good will to seek a better life and learn to live together in harmony.
But civil rights leaders made clear that they never trusted law to bring people to think right, as contrasted from using law strategically to prevent people from doing wrong. As Martin Luther King wisely observed, “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important.”
More importantly, I fear that Professor Reid’s endorsement of government “as a force for good — and greatness — in the world” and as an instrument to reconstruct “the precincts of the human mind” poses grave dangers, both secular and spiritual.
First, by overreaching and asking government to act beyond its capability, we set the stage for disappointment and cynicism. When we aspire for government to bring brotherhood and goodness and love — what Professor Reid calls “the betterment of men’s hearts” — we set up government for inevitable failure.
What Professor Reid calls the “sickening refrain” of those who are skeptical of government has been generated by decades of disappointed experiences from unimaginative reliance on government. As but one example, we are now near the end of the fifth decade of the War on Poverty — and poverty is still winning. Even after welfare reform during the Clinton years, spending on means-tested social welfare programs has risen by 50 percent over the past decade. One need not be “petty, crankish, and small-minded” to be discouraged by the powerful evidence of governmental failure.
And we will be disappointed yet again if we heel to a government-centric lead. Instead, we should be looking for more effective partnerships between government and private sector entities, moving government restrictions out of the way to allow charitable works to flourish, and working to allow greater freedom of choice in education that includes private and religious schools, while maintaining a government-funded safety net.
In sum, what we need is imagination, a rethinking of possibilities and creativity in methods. And imagination, although bountiful in people, is always in short supply in the impersonal bureaucracies of government.
Second, the genius of the American system lies not in the power of government but in its opposite — liberty. And yet the words “liberty” and “freedom” are not to be found in Professor Reid’s several posts about government and politics. Nearly every law enacted and every government act initiated constricts freedom. For a good cause, the cost to freedom may be justly borne. And people of good faith will disagree about the appropriate balance and justifiable tradeoffs — and those in both political parties do not deserve contempt for reaching different conclusions.
But government knows no bounds and freedom is in grave jeopardy when the power of the State is unleashed in a crusade for the “betterment of men’s hearts.”
Finally, promoting statecraft as soulcraft delivers us into the great temptation of idolatry. I earnestly urge great caution here. Whenever anyone proposes empowering government through the force of law to enjoin the right way to think or to shape the right way to feel, we should be nervous. This disquiet should remain even when — no, especially when — we are convinced that we know what the right way is.We must insist that the “precincts of the human mind” belong to God — not to government. And we must be ever so careful not to confuse the two.