Capitol Ideas/Civil Rights and Wrongs
Bethell, Tom
CAPITOL IDEAS CIVIL RIGHTS AND WRONGS F ollowing Saddam Hussein's seizure of Kuwait, Washington is in the grip of something close to war fever. With Congress away on vacation, most of the Cabinet...
...It fell to the Supreme Court to give life and force to the statute's spare language...
...If the President can stand up militarily to Saddam Hussein, he can stand up rhetorically to Benjamin Hooks...
...Conby Tom Bethell stitution) have maintained that it was unwise to attach a list of things government is prohibited from doing to a document that spells out exactly what that government is authorized to do...
...today, and affirmative action is probably making them worse, doing little more than serving the interests of a black elite specially protected by thestate...
...For example, the First Amendment says that Congress "shall make no law" prohibiting the freedom of the press...
...As Professor Michael Gold subsequently pointed out, "the Court cited not a line in a committee report, not a colloquy on the floor of either house of Congress, not the testimony of a witness before a committee, not even the report of a journalist in a newspaper," in defense of its assertion...
...is being relegitimized...
...The first ten amendments to the Constitution, the Bill of Rights, list a number of things that the federal government does not have the power to do...
...So it would be bad for the country, dummy, if companies feel it prudent to hire people on the basis of race rather than merit...
...hostages...
...It is without doubt one of the worst pieces of legislation everto arrive at the Oval Office...
...For some reason, Justice Brennan took no part in the case, but all the other justices—Black, Douglas, Harlan, Stewart, White, Marshall, and Blackmun joined Burger...
...one day he said he "desperately" wanted to sign a new civil rights bill...
...Benjamin Hooks of the NAACP...
...In a sense, such a list is redundant, tending in the long run to create the presumption (the Tenth Amendment notwithstanding) that the government is authorized to do anything that it is not specifically prohibited from doing...
...The recent bills passed by the House and Senate show just how far we have fallen from the old and true understanding of the meaning of "rights...
...One of the inherent beauties of a democracy is the slowness to make war—the people are reluctant to suffer, to see their sons die, and their reluctance holds a government back—but last week the wheels raced forward, and, instead of questioning, the columnists cheered...
...So I shall defer consideration of the crisis (for once the word is appropriate) until the next issue...
...And it is supported by Mr...
...The U.N...
...This legislation was well intentioned, and the legislative history of the Civil Rights Act made it abundantly clear that employers could screen job applicants with tests...
...James Jeffords, a "key cosponsor, a Republican sponsor," who "was there every step of theway and mastered the subject in extraordinary detail...
...With Congress away on vacation, most of the Cabinet likewise, with the Secretary of State in Wyoming and the Vice President in Arizona, a naval blockade of Iraq has been mounted, over 40,000 reservists called up, and tremendous military forces massed in Saudi Arabia...
...Sen...
...The feeling seems to be: now that we no longer have to worry about the Soviets, the U.S...
...The legislation should be vetoed, with an accompanying message pointing out that the new law would restrict the civil rights of all Americans...
...THE AMERICAN SPECTATOR OCTOBER 1990 11 In the case of the pending legislation, a most important civil right enjoyed by all Americans is directly attacked: the presumption of innocence...
...Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation...
...Civil rights are here drastically redefined to mean a redistribution of power, away from some who supposedly have too much of it, in favor of others who have been deprived of their fair share...
...H ow did this deplorable state of affairs come about...
...Civil rights are limitations of government power...
...I find the situation disconcerting, because the consequences of such far-reaching and scarcely debated actions are incalculable...
...It is indeed a quota bill, as charged...
...They specify things that government is not authorized to do—to any citizen...
...The Washington Post's Colman McCarthy, who teaches peace studies at a nearby university, has been strangely mute...
...She showed her ignorance of the subject when she wrote (July 21): "In enacting Title VII of the Civil Rights Act of 1964, the principal modern Federal law against job discrimination, Congress did not spell out what difference, if any, it saw between purposeful and unintentional discrimination...
...can impose its will anywhere in the world...
...Republican Senators John Danforth and Arlen Specter were also profusely thanked by Kennedy...
...THE AMERICAN SPECTATOR OCTOBER 1990 13...
...The problem is, it is labeled a civil rights bill...
...nicer still if he could be replaced by a pro-Western constitutionalist with democratic leanings, perhaps even favoring church-state separation...
...Therefore, the President worries that he will be called "anti-civil rights" if he does veto it...
...In a 1989 case, the new Court, by a 5-4 margin, made it more difficult to claim that an employment practice was discriminatory just because it had a "disparate impact" on the labor pool...
...It began with the 1964 Civil Rights Act, Title VII of which declared it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...
...All the complaining party has to do is show that "disparate impact" somehow results from some (unspecified) "employment practice," and lucrative lawsuits can be pressed...
...In other words, the presumption of innocence is lost...
...There has been scarcely a word of dissent from the normally adversarial press—something I never thought I would see in Washington...
...M eanwhile, President Bush has been bouncing about on his speedboat and holding almost daily press conferences...
...now an expansion of government power...
...No such justification in fact existed...
...For once, also, I find myself in agreement with a New Yorker "Talk of the Town" piece: "The still, small voice suggests that we stop and think...
...Howard Metzenbaum, responsible for "most, if not all, of the provisions that were drafted and incorporated in the legislation today," and Vermont Sen...
...As William Laffer pointed out in an analysis of the proposed legislation for the Heritage Foundation, the new legislation "would benefit middle- and upper-class minority individuals who have the education and skills to benefit from de facto quota hiring...
...Well, as you can imagine, the civil rights lawyers and their dutiful agents in Congress didn't take well to that...
...that it would in fact undermine the civil rights of all Americans...
...Hubert Humphrey noted on the Senate floor that "the express requirement of intent is designed to make it wholly clear that inadvertent or accidental discrimination will not violate the title or result in the entry of court orders...
...As the long-time civil rights lawyer Joseph Rauh said on Fox TV in July: "If you enforce civil rights [with the new law] there may be some people who would use that, use a quota as a basis of avoiding it...
...Let us step back for a moment and consider: What are "rights...
...One of the things he has been saying is that he would very much like to sign a new civil rights bill...
...An enforcement provision of Title VII noted that if the employer "has intentionally engaged in or is intentionally engaging in an unlawful employment practice," then and only then may the courts "order such affirmative action as may be appropriate...
...By way of illustration, here is a quotation from a recent New York Times editorial (August 6) urging "no steps back" on civil rights: "Civil rights usually are minority rights...
...Some constitutional scholars (indeed some of the framers of the U.S...
...Hence, a civil rights law originally intended to promote merit hiring will certainly end up promoting hiring by quota...
...counter the Ayatollah Khomeini, should recognize how unlikely this is...
...The Griggs decision was written by Chief Justice Warren Burger, incidentally...
...It would indeed be nice if Saddam Hussein could be surgically removed...
...Formerly it entailed a limitation of government power...
...This was judicial activism at its worst, the Supreme Court at its nadir...
...When the bill passed the Senate in July, Sen...
...And it specifies a limitation of government power: government cannot presume the guilt of citizens without due process of law...
...I confess to complete uncertainty as to how the situation will look a month from now...
...First Amendment rights are therefore something that all Americans have—not just journalists...
...Of course, no company will admit that it has been using surreptitious quotas since the 1971 Supreme Court ruling, because such quotas are illegal...
...to strike the first blow against Iraq...
...Not true...
...The New York Times has editorial-1 ly denied that the bill would promote quotas, claiming that no such "evidence" has been offered...
...Ted Kennedy went out of his way to praise its "principal architects, among them Sen...
...Saddam Hussein may be bad, but that does not mean he is anomalous in the Middle East...
...The President has "vowed" not to be intimidated by the taking of U.S...
...Nothing in the act, according to a subsection of the text, could be interpreted to require "preferential treatment to any individual or to any group because of the race, color, religion, sex or national origin of such individual or group, on account of an imbalance which may exist with respect to the total number or percentage of persons of any race [etc.] employed by any employer . . . in comparison with the total number or percentage of persons of such race [etc.] in any community, state, section, or other area, or in the available work force in any community...
...Minorities and women ordinarily must prevail upon white males, whose rights are pretty secure, to share some of their power...
...About the only way that a company can guard against such a costly outcome is to hire people in the approved racial and ethnic proportions in the first place...
...Not only could they hire on the basis of merit, they were encouraged to do just that...
...In short, employers could hire whomever they wanted, provided they didn't discriminate on the basis of the stated criteria...
...This redistribution in turn presupposes a redistributor, itself armed with augmented powers of coercion...
...And as the power wielded by government over all citizens increases, so the civil rights of all citizens must concomitantly decline...
...is The American Spectator 's Washington correspondent...
...We all have the same rights (obviously there are circumstances in which this may not be true of minors, felons, and the insane), and these rights derive their legitimacy not from the generosity of the framers but, ultimately, from human nature...
...Quota hiring will not alleviate the problems of our inner cities...
...Liberals who cheered the downfall of the Shah, only to enTom Bethel...
...After Justice Kennedy joined the Supreme Court in 1988, however, a bare majority existed to overturn some of the Court's worst affirmative action rulings...
...Liberals should not be allowed to monopolize political vocabulary...
...Despite the plain wording of the act, and an ample legislative history, the Supreme Court in the 1971 case Griggs v. Duke Power Ca changed the meaning of "discrimination," declaring on its own authority that "the Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation...
...Under the new legislation, an "unlawful employment practice is established" when a "complaining party demonstrates that an employment practice results in a disparate impact on the basis of race, color, religion, sex or national origin, and the [employer] fails to demonstrate that such practice is required by business necessity...
...Notice first that this presumption is a true civil right: it is enjoyed by all...
...In effect, the burden of proof of discrimination was shifted 12 THE AMERICAN SPECTATOR OCTOBER 1990 from companies to complainers...
...The statute did spell out the difference, precisely with the word "intentional...
...So the meaning of rights is not merely changed but actually reversed...
...Low-income minority workers tend to be found in those jobs in which they are, if anything, overrepresented...
...Arab culture seems to encourage ruthlessness in its rulers as a matter of course...
...some in Washington are obviously seeking a pretext for the U.S...
...Covering this issue for the New York Times, incidentally, has been an advocacy journalist named Linda Greenhouse...
...There are serious racial problems in the US...
...But so what...
...It was approved by 64 percent of the House and by 65 percent of the Senate...
...The new so-called civil rights bill would change this...
...Bush should long ago have launched a rhetorical strike on this legislation by pointing out that it has nothing whatsoever to do with civil rights...
...So they swung into action with this new abomination, slapped the "civil rights" label on it and watched for predictable Republican trembling...
...The House and Senate have obliged by presenting him with a new civil rights bill—so called...
...It "desperately" needs the President's veto...
Vol. 23 • October 1990 • No. 10
