The Corruption of Civil Rights
and Civil Law

The effects of the late civil strife have been to free the slave and make him a citizen. Yet he is not possessed of the civil rights which citizenship should carry with it. This is wrong, and should be corrected. To this correction I stand committed, so far as Executive influence can avail.

Social equality is not a subject to be legislated upon, nor shall I ask that anything be done to advance the social status of the colored man, except to give him a fair chance to develop what there is good in him, give him access to the schools, and when he travels let him feel assured that his conduct will regulate the treatment and fare he will receive.

President Ulysses S. Grant, Second Inaugural Address, 1873

Within the framework of traditional justice, where constitutional rights are essentially exemptions from the power of the state, rights to equal treatment or to freedom of speech or religion apply where there is "state action" but not when only private individuals or organizations are involved.

Thomas Sowell, The Quest for Cosmic Justice
[The Free Press, 1999], p. 154

The Constitution has no more to do with the [Supreme] Court's opinions than the Book of Revelation has to do with the Unitarian Church.

Joseph Sobran (1946-2010)

The concepts of "civil rights" and of "civil law" are both functions of the concept of "civil society": Civil society is that sphere of private action free of government control. It is not free of government action, because government action secures the nature of civil society by the protection of persons against criminal wrongs.

This idea was well and famously stated by Thomas Jefferson in his First Inaugural Address in 1801:

Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.

The essence of civil society is thus that people are left by government to "regulate their own pursuits of industry and improvement," while the government protects the citizens from criminal wrongs of violence, theft, fraud, etc. Civil rights and civil law exist in relation to such a scheme of civil society.

Civil rights actually define civil society by delimiting the areas of private action into which government power cannot go. Civil rights thus define the barrier between government action and private action. In line with this, the entire Bill of Rights begins with the significant phrase, "Congress shall make no law...," thus indicating actions that the federal government was prohibited from undertaking. The Constitution itself employs a dual strategy: the principle of civil rights and the delegation of limited powers. The Tenth Amendment therefore denies to the federal government any powers that have not been delegated to it or denied to the States by the Constitution, while the Ninth Amendment affirms that the federal government is limited, not only by the specific powers that it may exercise, but by all civil rights, whether or not these happen to be specified in the Constitution. What the government could do is therefore supposed to be clear and limited, while what the government cannot do is supposed to be left with an indefinite and open ended interpretation.

The result of the Civil War was the extension of federal civil rights principles to the States. To protect freed slaves, the Fourteenth Amendment required that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

The kinds of things this was intended to protect is clear from the Civil Rights Act of 1866, which was originally declared unconstitutional but then upheld when reenacted in 1870, after the ratification of the Fourteenth Amendment. All citizens, the act declared, "have the right to make and enforce contracts, to sue, be parties and give evidence; to inherit, purchase, lease, sell, hold, and convey real property, and to full and equal benefit of all laws and proceedings for the security of person and property." All governments then, state and federal, are required to protect the rights of person, property, and contract, without interfering with rights of inheritance, property, judicial action, etc.

Complementing civil rights is the conception of civil law. Civil actions consist of legal actions by private citizens against private citizens: Civil wrongs are breaches of contract or torts, wrongs specified in common law and case law but not, originally, by statute law. Civil wrongs are remedied by monetary damages paid to the plaintiff. Typically, the criterion of judgment in civil cases is less stringent than in criminal cases, that a verdict is to be based on the "preponderance of the evidence" rather than "beyond a reasonable doubt." In colonial America, civil cases were often decided by judges, without trial by jury. That was troubling to Jefferson and others, who wished to establish the right to trial by jury in civil as well as criminal cases. This was accomplished in the Seventh Amendment, which extended the protection of trial by jury, recognized by the Sixth Amendment in criminal cases, to civil cases "where the value in controversy shall exceed twenty dollars." In 1990 dollars, that would be at least three hundred dollars.

The principles of both civil rights and civil law have now been corrupted as part of the process by which, as Jefferson said, the power of government is expanded and liberty is attacked. In both cases, the corruption is effected with specious principles that confuse the role of government with that of private individuals: In the one case that private individuals may be identified instead of government as adversaries of civil rights, and in the other that government may be considered to stand in the place of a private individual as a party to civil actions.

The corruption of civil rights was effected by the New Deal, especially by a New Deal court decision that required property owners to tolerate trespassers who were exercising their First Amendment "right of free speech." Such property owners were those who otherwise allowed public access to their property for commercial purposes. Thus, owners of shopping malls or residential properties might not be able to exclude persons whose only business on the property was to demonstrate or solicit for political or other causes. Such a decision, in effect, puts the private property at the disposal of the public and renders the commercial enterprise of the private individual into a branch of government, so that the owner can no longer exercise his customary discretion over the use of the property -- all this despite the explicit statement of the Fifth Amendment: "Nor shall private property be taken for public use without just compensation."

This was of a piece with other New Deal court decisions which established "relaxed review" of laws that only dealt with "ordinary commercial relations" (the infamous 4th footnote to United States v. Carolene Products Co., 1938), and that dictatorially decided, without precedent, that "commercial speech" was not covered by the First Amendment prohibition that "Congress shall make no law....abridging the freedom of speech" (Valentine v. Chrestensen, 1942). The dishonesty, bias, and purpose of the New Deal court is obvious in these precedents:  Basic civil rights can be arbitrarily suspended where the government decides to increase its power, as over economic life, or can be used as a weapon to destroy other rights, like property rights, when the court decides that civil rights can be construed as limitations on previously private action. It is revealing that the same right, to free speech, could be involved in both maneuvers: suspended to increase government power on the one hand, but magnified when it diminishes private property rights on the other. As Thomas Sowell said recently:

Constitutional rights that are essentially exemptions from government power under traditional concepts of justice become reasons for the further extension of government power under cosmic concepts of justice. [The Quest for Cosmic Justice, The Free Press, 1999, p. 155]

In the case of free speech, the cosmic conception is that one should be able to exercise it anywhere, whether the property be private or public -- though advocates of "progressive" ideology have recently become famous for preventing or interfering with speeches by political conservatives on university campuses, usually with the justification that reactionary or fascist advocacy (e.g. views sometimes expressed by even majorities of voters) does not need to be tolerated as part of honest political debate. Indeed, the urge to silence opposition, nakedly displayed by campus radicals, is more subtly evident in attacks on the First Amendment rationalized by economic justification (that business must be regulated) or by other considerations of monetary power (as in the Trojan Horse of "campaign finance reform," which will, as planned, prohibit individuals or organizations from using their own money for political advocacy).

Given the dual strategy of using some rights to attack others, or just to excuse direct suppression, it was only a matter of time before it could be expanded without limit. The Civil Rights Act of 1964 not only abolished official segregation mandated by governments, the source of a previous century of civil rights violations in the South, but also prohibited discrimination in private commercial transactions, with the flimsy justification that all commercial transactions "affected" Interstate Commerce, which the federal government had the power to regulate under the Commerce Clause. Thus, a private restaurant refusing to serve a customer because of their "race, sex, or national origin" became a federal "civil rights offense," vastly expanding the power not just of government, but of the federal government in particular, over private relations of property, association, and contract. Segregation laws themselves had violated the freedom of those relations; but rather than merely striking down those laws and freeing people to mind their own business, the power of the federal government was vastly magnified, not to enforce private discrimination, as in previous segregation laws, but to prohibit it. The need to regulate such private relationships could be justified, not by any honest reading of the Constitution, but by clearly Marxist postulates about the helplessness and powerlessness of people in the capitalist free market and the relative meaningless of "freedom" where people are at the mercy of capital, business, and "bosses."

Given these principles, things have proceeded on the obvious course: The prohibition of sexual discrimination came to mean the prohibition of a discriminatory "hostile environment" in the workplace, where a hostile environment was anything that a "reasonable woman" might find offensive by way of sexual references or representations (even extending, it seems, to works of art like Goya's Naked Maja). Thus, what for most of history would be considered matters of boorishness or bad manners, remedied by a sharp word, a slap in the face, or quitting (or, in some case, the retaliation of male relatives), suddenly becomes a federal "civil rights" offense with perhaps millions of dollars in damages hanging on the judgment. It could be claimed, in turn, that "hostile" sexual references could even extend to well meaning complements about dress or appearance, the use of "sexist language" (e.g. "he" instead of "they" as a pronoun), or the making of "sexist" statements like "A woman's place is in the home." Thus, the process again comes full circle to another attack on the First Amendment, now on grotesque political grounds, since the identification of "sexist" statements or language as a "hostile environment" depends on the acceptance of certain feminist political principles. The "civil right" not to be discriminated against by private business thus becomes the means to judicially attack the free expression of the good faith social, political, and religious beliefs of private individuals. This allows for the establishment of truly totalitarian legal principles.

One justification of anti-discrimination laws was that, by prohibiting acts of irrational bigotry, they would actually force employers to behave more rationally, thereby actually improving their businesses and making them more profitable. Thus, anti-discrimination laws were for employers' own good. This approach actually did not last long, since the courts soon decided to micromanage business decisions, which they were in no position to do, and the principle of the Civil Rights Act of 1964 that mere numerical differences in employment could not be used all by itself as evidence of discrimination was soon completely ignored. Affirmative action "goals and timetables," i.e. quotas, soon became matters of executive and judicial mandate, all on the completely fantastic and irrational assumption that all ethnic groups, and soon even both sexes, have the innate equal ability to do anything just as well. Unequal "representation" could therefore only be the result of illegal discrimination. Thomas Sowell now has written many books (e.g. Ethnic America, Basic Books, 1981) on the universal way in which cultural differences make for varying economic success. Thus, the ability of Chinese immigrants to rise from poverty to economic domination in Malaya, Thailand, Indonesia, Vietnam, or the Philippines had nothing to do with political power or majority status, neither of which they had in those places. The majority populations were poorer because, culturally, they weren't very good at starting or running businesses. In American politics, the assumption is always that minorities are poor because they are minorities and without majoritarian political power. This is obviously not even true in the United States, where minorities like Chinese, Japanese, and Jews, although historically discriminated against, are economically among the most successful groups in the population.

A step beyond this "for their own good" kind of argument came with the "Americans with Disabilities Act," signed into law by President Bush. The principle of this law was not that employers must be forced into better business practices by the prohibition of irrational conduct, but that businesses were to be forced to make "reasonable accommodations" to provide for employees and customers with disabilities. So, even if a business does not have any wheelchair-bound employees or customers, it still must provide for them -- and not just in a practically effective way (i.e. have employees lift a wheelchair customer up a step), but in a way that the government thinks, with urging from "civil rights" organizations for the disabled, is appropriate (i.e. a ramp, suitably constructed and placed, for wheelchairs). "Reasonable" cost is not left up to the judgment of the business, but to the "compassion" of distant, hostile, and politically driven bureaucrats. The danger to their very existence that this poses to small businesses, of which half of new ones fail every year, is of little concern to the bureaucrats, who probably would agree with Hillary Clinton that "We can't be responsible for every undercapitalized business" [said by her in the context of imposing new minimum wage laws].

This principle is now leading to extraordinary rulings that, for instance, because alcoholism is a disease and so a "disability," "reasonable accommodations" must be made for the absenteeism or job related incapacities, even the hostility or violence, of alcoholic employees. There is certainly no limit to the irrationalities that can be mined from such avenues of reasoning; but more importantly is how the Fifth Amendment requirement that private property shall not "be taken for public use without just compensation" is completely voided: If the government thinks that someone "deserves" some benefit, then it can simply order private businesses to provide it for them. Someone who is politically regarded as needy or worthy has a "civil rights" claim to the substance of others so that they are able to live in the style that they regard as appropriate.

Thus the original principle that civil rights are protections from the power of government is completely turned around, becoming an open ended claim against the substance, the freedom, and even the sincere opinions of others, enforced by a government that consequently must grow to totalitarian dimensions. The irony and cleverness of this, as a strategy for tyranny, is as noteworthy as its effect is terrifying.

But the architects of absolute power have not been content with this grotesque corruption of the constitutional means of protecting freedom. Elsewhere I have described how an entire new category of law, "Administrative Law", has been invented out of whole cloth in order to make possible the dishonest exercise of unlimited power by administrative agencies. But, not satisfied with thus circumventing the protections of criminal jurisprudence, an additional strategy has been hit upon, to use civil law, as well as criminal law and "administrative" law, to expand the power of government: If the government can pursue individuals in the guise of a private individual itself, through civil actions, then it can use real courts, and not just kangaroo "administrative" courts, without worrying about all the limits upon it in criminal cases: A civil defendant does not have protections against self-incrimination, double jeopardy, the stringent standard of guilt "beyond a reasonable doubt," etc. A "civil penalty" instead of a criminal fine can be much more easily proven and collected. This charade hardly seems necessary given the other powers improperly seized or created by government, but it does help reveal the extent of the insatiable hunger, ruthlessness, sophistry, and dishonesty with which the partisans of government implement their quest for power. By every conceivable device the goal will be pursued, which is why Jefferson wrote from Paris in 1787:

If once [our people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves.

The wolves have certainly gotten our scent, though the worst thing is how perhaps most Americans have bought into the self-serving idea that predatory political actions can be taken for their benefit against others who are presumably unworthy. These are the problems of Rent-Seeking, Public Choice, and The Prisoner's Dilemma. Americans will continue to approve of vast public theft as long as they think they benefit from it. It is unutterably sad that a truth so well known to the Founders of the Nation, that public theft ultimately only benefits the holders of public power, must be learned all over again. As Jefferson, again, said, in his Notes on Virginia, 1784:

Mankind soon learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty....will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circumstance, that they are the instrument, as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and claws after he shall have entered.

It is now too late. The wolves are in the fold, with ravening teeth and claws. The grievous struggle of drawing them must now be effected.

Adopting the following principles can undo some of the damage:

  1. No private citizens or corporations can be defendants in civil rights cases, unless they are exercising a police power (e.g. making a citizen's arrest).

  2. Only private citizens or corporations can be plaintiffs in civil suits or actions.

The first principle does not prevent bad civil rights law from being translated into criminal law, but it preserves the meaning of civil rights. Also, it would prohibit the bizarre existing situation that private bounty hunters, working for bail bondsmen, are able to ignore all civil rights protections in the course of their searches and arrests -- in cases of mistaken identity, this has resulted in innocent citizens essentially being kidnapped and transported in bondage to distant States. The second principle, together with the abolition of "administrative" law, returns government to its properly restricted and limited place in the prosecution of only criminal cases.

Varieties of Civil/Social Rights

Note on Civil Society

Note on Alan Dershowitz

Political Economy

Home Page

Copyright (c) 1997, 1998, 1999 Kelley L. Ross, Ph.D. All Rights Reserved

Note on Civil Society

The distinction between "civil society" and "political society" is the difference between voluntary relationships and exchanges and those relationships and exchanges that are effected by the force or coercion of government. A regime in which only civil society existed would be a state of anarchy. There would be no legitimate exercise of force or coercion. However, this ideal, the "state of nature" absence of government, has been long observed to be impossible, since there are those who will resort to force in order to compel those whom they can, the weaker, to do their bidding and serve only their interests (a relationship endorsed by Nietzsche). Thus, an appeal is made to others for aid, and associations are formed for the common defense and the adjudication of disputes and grievances. These associations in that way assume the powers of government. If the purpose of government, as John Locke (1632-1704) and Thomas Jefferson claimed, was merely to remedy the wrongs allowed by the state of nature, and so to secure the rights naturally held by all, then this is the conception of a liberal society, where the voluntary relationships of civil society are protected and force is only used to prevent the wrongful use of force by some citizens against others. Political society, which possesses the monopoly of force, thus can be imagined as surrounding and protecting civil society -- though all citizens retain their natural (default) right to self-defense in the absence of effective protection from government.

In political thought subsequent to Locke and Jefferson, contempt and hostility has been turned against the conception of civil society. The idea of merely private concerns and activities has been regarded as selfish, anti-social, and also unfulfilling. This reflects a strain of Greek political thought, in which the idiotês, the merely private person, was not properly a citizen. The modern "negative" conception of freedom is thus taken as unfulfilling. Only the "positive" freedom of political power makes one a true member of society, sharing in the achievements and identity of the whole, caught up into something larger and grander than private life.

As a purely secular conception, this was introduced in modern thought by Jean Jacques Rousseau (1712-1778), who thought that such purely political society, the exercise of the "General Will," would redeem the natural freedom that was lost when the, for him, idyllic state of nature was left behind. Unfortunately, a regime in which even the most intimate matters can be dictated by political authority and compelled even by deadly force is the monstrous and tyrannical conception of totalitarianism. The experience of this was bad enough in the Terror of the French Revolution, directly inspired by Rousseau, but its horrors and toll in lives were only really displayed in its Fascist and Communist versions in the 20th century. The political moralism of a totalitarian regime can leave virtually nothing to the private choice and preference of individuals, and the idea that even murderous political authority is only expressing the "will of the people" has time and time again only become the cruelest and most horribly ironic of jokes.

The argument of some that the Soviet regime was not "really" Marxism, and that a democratic Marxism is possible, avoiding the terror and murder of 20th century Communism, founders on Marx's clear rejection of civil society as a "bourgeois" conception. Indeed, Marxist economics is a general condemnation of voluntary economic exchanges, not to mention private property, which means that every way in which one must act to earn a living is exempted from civil society. The notion that this could be effected while preserving non-economic privacy and liberty is now contradicted by, among many things, the use of "sexual harassment" and other "labor" law to overturn the First Amendment and "abridge" or even prohibit freedom of speech in the workplace. The truth is that Marxism is based on the ideal of the French Revolution, with all its Rousseau-inspired totalitarianism, and no later Marxists, however desperate to put a liberal happy face on it, are any different.

Now, the idea that economic exchanges should be entirely governed by political society is socialism or, with provision for some civil liberties, "social democracy" or "democratic socialism." It is clear from the practice of its partisans, however, that "social democrats" have only the very weakest commitment to privacy and civil society, and they are often driven by more radical activists whose totalitarian sympathies, as in the "the personal is political" slogan of feminism, and distain for all civil liberties are obvious. There is nothing about the notion of "democratic socialism" that would prevent the version of "democracy" in just the way it was conducted in the Sovietized regimes, where the "people" are always on the tongues of the tyrants, while individual persons are always enslaved or murdered. As Jefferson had already noted, that it is the tendency of government to increase and liberty to decrease, it has been the experience of liberal societies that socialist and totalitarian criticism has led to a constant assault on voluntary relationships and exchanges and a steady growth in law and authority to invade and govern civil society. The attack on free speech and association, both in the speech codes of radicalized universities and in labor and "civil rights" law, betrays the ultimate, totalitarian goal of "democratic socialism."

To come full circle, it is noteworthy that modern anarchists, from Bakunin (1814-1876) to the Seattle vandals of 1999, tend to see the state of nature rather differently from Locke or Jefferson. If "property is theft," then taking things from others is not necessarily a wrong, in either the presence or absence of government. This converts the state of nature into the equivalent of a socialist or totalitarian regime, where rights to voluntary exchange and other immunities of property or person may be denied. This is the other defect of the "state of nature," for it leaves indeterminate just what rights are supposed to exist in the absence of government. Thus, Locke's conception could lead to a sort of liberal anarchism, like contemporary libertarian anarchists (e.g. Murray Rothbard), while Bakunin's indicates a totalitarian anarchism, like the typical "black" leftist anarchists of today. Hobbes avoided this by denying that there were any rights in the state of nature -- they were all positive grants by government, at the discretion of the sovereign. This indeterminacy does certainly make it easy to imagine, not just that the state of nature allows the strong to victimize the weak, but that conflict would also be inevitable between those maintaining their right to their property and those others who believe they also have a right to it. Government as the means of adjudicating conflict must then make explicit which principles of property and privacy will be honored.

The United States as a liberal society is now endangered in great measure by the phenomenon of lefists who seek a totalitarian regime concealing their intentions behind the rhetoric of freedom, while tirelessly working to destroy the reality of it. Thus, the Constitution and basic laws of the United States are now commonly subverted by interpretations and policies aimed at their opposites, as in the noted attacks on free speech. This strategy was conspicuous with the Communists of the late 40's and 50's who sought to conceal their loyalties, views, and intentions behind the principles of free speech that they would not have allowed themselves had they been in power. And it is obvious in the popular Marxist Herbert Marcuse (1898-1979), who damned liberal society for the "repressive tolerance" that actually did tolerate non-leftist opinion and activity -- "liberating tolerance" means to crush dissent. Such sophistry is no less than the practice of modern "progressives" in academia and the intelligentsia, whose hostility to civil society and civil liberties is thereby exposed to all who bother to look.

Some leftists and "progressives" have recently discovered civil society, after a fashion. At the United Nations, Non-Governmental Organizations (NGO's) are called representatives of civil society. However, the most cursory examination of these organizations reveals that they rarely have any genuine interest in civil society. They are largely political advocacy groups, whose goals are government action, not private action. They get called representatives of "civil society" just because they are themselves private -- although many only exist, and possess the influence they do, because of government grants or subsidies. As in the case of civil rights, the purpose of this, perhaps deliberate, is to confuse the unwary and to appropriate liberal concepts and liberal institutions for illiberal or totaliarian purposes. Just as few are aware that "civil rights" no longer means what it once it, but its opposite, "civil society," with whose very name most are unfamiliar, may be doomed to go in the same direction.

The Post-Modern Left

Political Economy

Home Page

Copyright (c) 2000, 2004, 2011 Kelley L. Ross, Ph.D. All Rights Reserved

Note on Alan Dershowitz

Several points similar to those in the essay "The Corruption of Civil Rights and Civil Law," above, are made by Harvard Law School professor and civil libertarian Alan Dershowitz in an "Advise & Dissent" column in the September 1998 issue of Penthouse magazine [pp. 122-123, 198, 201-202]. While Dershowitz is a classic social democrat, with little interest or respect for property rights or the free market (characterizing the libertarian Cato Institute as "conservative" [note]), he does have a true consistent, liberal respect for personal freedom and the non-economic parts of the Bill of Rights. This puts Dershowitz in a bind when it comes to the policies of Bill Clinton. Speaking of Clinton's 1998 State of the Union speech, Dershowitz says,

When Clinton talked brilliantly about education reform, Social Security, and the budget, I knew why I had supported him for president. When he talked passionately about better child care for working parents, I knew why I liked him as a friend. But then he said something that made me explode with anger toward the man I voted for, admired, and liked. He talked about saving our "disintegrating American treasures," like the Bill of Rights. The President was referring, as it happens, to the physical preservation of the original document of 1793. But the ambivalence of this phrase was grating. Here was Mr. Clinton, who had done more to destroy the values reflected in the Bill of Rights than any president in recent memory, piously worrying about an old piece of paper. Talk about elevating form over substance. [boldface added]

Here, Dershowitz clearly finds no fault, only virtue, in unconstitutional, Prussian, and totalitarian federal involvement in education, "social security," and child care. This is the leftist agenda to render American citizens economic peons of the government, dumbed down with offical "educational" propaganda from government schools. But Dershowitz, much as he likes this, can find no virtue in the federal assault, warmly endorsed by Clinton, on the First Amendment, on privacy and the Fourth Amendment, and on habeas corpus.

Clinton supported and signed a law restricting habeas corpus even more than anything reactionary Chief Justice William Rhenquist has advocated. Under the Clinton statute, a defendant will have difficulty challenging his or her conviction in federal court even if it can be demonstrated that the conviction was based on unconstitutional procedures or insufficient evidence... Under the Clinton law, "mere innocence" is not enough to secure a writ of habeas corpus.

Most damning, Dershowitz says that "Clinton has turned out to be the presidential equivalent" of Bush Supreme Court nominee Robert Bork ("Judge Dread"). Dershowitz concludes that Clinton is an opportunist, who ignores the principles of the Bill of Rights for political expediency, but also, more significantly in the long run, is part of a movement of opinion through which the very meaning of civil rights has been corrupted. Thus, the left, once it has power, as on university campuses, becomes impatient with dissent. Politically "incorrect" speech comes to be viewed as a crime, indeed, as a "civil rights" offense against its "victims."

Dershowitz recognizes the collectivist thrust of recent "communitarianism, a fuzzy philosophy that elevates responsibility over rights," as described here in "Rights, Responsibilities, and Communitarianism." Dershowitz continues,

These communitarians have introduced a new vocabulary of "rights" calculated to confuse. The classic definition of rights is negative -- a denial of government power to intrude on certain basic liberties. Individuals have rights in relation to the government.

...This new vocabulary of affirmative "rights" turns on its head the classic concept of negative rights in relation to the government, and shows how easy it is to confuse governmental power with individual rights. Every modern tyrant has talked about the "right of the people" as he put dissenters in prison or worse.

No kidding. This is precisely the point of "The Corruption of Civil Rights and Civil Law," but Dershowitz doesn't realize he himself has sanctioned the corrupt actions, the "takings" of private property in New Deal jurisprudence, that opened the door to the extension of the civil rights turnabout into "takings" of personal civil liberties as well. Dershowitz himelf may believe in "affirmative rights" to employment, medical care, housing, etc., all of which imply assaults on the freedom and property of others. But now Dershowitz is alarmed when the rights of the accused are limited or free speech restricted,

The reality, therefore, is that Clinton is not being hypocritical at all. It is much worse. He really believes this stuff.

Dershowitz doesn't see much hope. Al Gore and his wife Tipper have less interest in civil liberties than Clinton, the Republicans are hot for censorship, and even the ACLU will often not defend the free speech of those who don't agree with its own social political agenda (which is no longer "civil liberties" but welfare rights/powers). Al Gore is quoted by David Kelley (1 October 1998) as actually saying:

We have tilted so far toward individual rights and so far away from any sense of obligation that it is now difficult to muster an adequate defense of any rights vested in the community at large or in the nation -- much less rights properly vested in all humankind or in posterity.

Perhaps Gore has never read the statement of the Declaration of Independence that "to secure these Rights," i.e. individual rights of "Life, Liberty, and the Pursuit of Happiness," "Governments are instituted among Men." What we have "tilted" away from, to get to someone like Al Gore, is the purpose of the American Revolution.

Dershowitz's only hope is that Clinton will be radicalized by the investigations and impeachment proceedings against him. However, Dershowitz misreads Clinton's personality and the hypocrisy of Democratic Party politics. Clinton will never want to change the laws. He only wants to be exempt from them. Laws are weapons to get enemies, not standards to be applied impartially to everyone. Clinton and most Democrats believe that the end justifies the means and that Clinton should therefore be free, whatever he has done, to "complete," as Dershowitz says himself, "his generally excellent presidency."

If only Dershowitz believed in the full application of the "takings" clause of the Fifth Amendment, in the Second Amendment as a wise provision against a police state, or in any honest application of the Tenth Amendment, he would see the falseness at the core of Clinton's so-called "generally excellent presidency," not to mention the corruption and tyranny of those who pursue their agenda while "trampling on," as Dershowitz says, the Bill of Rights. Dershowitz doesn't notice the parts he has already been trampling on all along.

The Corruption of Civil Rights and Civil Law

Political Economy

Home Page

Copyright (c) 1998 Kelley L. Ross, Ph.D. All Rights Reserved

Note on Alan Dershowitz, Note

The way Dershowitz has a basic "us versus them," one-dimensional political perspective came out in a television appearance in December 1998, when he said that anyone voting for the impeachment of Bill Clinton was voting for "racism" and "pure evil," and that no one could vote against Clinton "on principle." So, presumably, even libertarians who don't believe in retaining a felonious, perjured President are really just crypto-"white supremacists." The arrogance, conceit, and perhaps desperation of this is stunning. It is also a classic example of judicial moralism of intentions. Thus, Dershowitz does not believe that anyone who disagrees with him could possibly do so out of good intentions -- they are not people of principle and simply represent "pure evil." They are "mad dogs."

This is a very dangerous direction for Dershowitz to go in as a civil libertarian, since if the enemies of Bill Clinton advocate no honest or discernable principle and are nothing but "pure evil," then there is really no longer any reason to tolerate their speech, or anything else about them. Even with all his reservations about Clinton, as examined above, Dershowitz is still willing to go to any rhetorical extreme in defending him. The political "side" of the conflict is more important than anything else. This is itself a characteristic of moralistic relativism, of which Dershowitz may well be a representative.

The phrase "mad dogs" might be more accurately applied to some of Clinton's defenders, like Hollywood leftist Alec Baldwin, who said (shouted, in fact) on a late night talk show that were we to react like people do in a lot of other countries, "We would stone [House Judiciary Committee Chairman Henry Hyde] to death, and we would go to their homes, and we'd kill their wives and their children. We would kill their families" [Daily Variety, Friday, December 18, 1998, p. 6]. A representative of Baldwin later said that "It was a parody on the hysteria in this country coming from right-wing fanatics." However, nothing from Ken Starr or the Republicans in Congress has been anywhere near as hysterical, hostile, or fanatical as remarks like all of these from Baldwin, Dershowitz, and others.

Return to text

The Kennedies

The Kennedy family now constitutes a significant part of American history. The family has also grown very large; and the political participation of many of its members, or their connection to scandal, holds the promise that it will continue to have a high profile for many years to come. More than other recent political families, like the Roosevelts or the Bushes, the Kennedies look all but dynastic in their size and influence. The nature of the Kennedy influence, however, has changed over the years, reflecting a noteworthy drift in Democratic Party politics.

In substance, it all began with old Joe Kennedy, who became very wealthy and a force in Boston Irish and national Democratic politics. In the Teens and Twenties, Kennedy made a considerable fortune in banking and on the New York Stock Market, sometimes by way of practices that are now considered unethical or illegal. And he got out of the Market before the Crash in 1929. At the same time, Kennedy was the American agent for Gordon's Dry Gin and Dewar's Scotch. When Prohibition ended, he multiplied his fortune when he was already prepared to distribute his products. Rumor, if nothing more substantial, persists that he had already been distributing his products, which were manufactured and could be stored, after all, just across the border in Canada -- trucks full of liquor were driven across the frozen river to Detroit in the winter. If that trade didn't involve Joe, it would be a little surprising. This, indeed, would be a nice touch in the Kennedy saga, that Joe was a Rum Runner. Whether or not, Kennedy's interests then spread into real estate, Hollywood, and politics. He soon was part of the Roosevelt Administration. In 1938 he became the American Ambassador to Britain. Unfortunately, Kennedy believed that Germany was pretty much unstoppable, and he supported the appeasement policies of Britain and France at the time. He resigned in 1940 because by then Roosevelt was preparing for American entry into the War. This left a lingering sense about him of isolationism, or worse.

In the War, Joe's eldest son, Joseph P. Kennedy, Jr., was killed testing an experimental aircraft. A Gearing class destroyer, DD850, was subsequently named after him. It is now preserved as a monument with the battleship Massachusetts. His next son, John ("Jack"), barely survived his own heroism, after his PT boat, PT109, was run down by a Japanese destroyer, the Amagiri, in the Solomons. Kennedy had broken his back -- it would trouble him the rest of his life -- but by great personal efforts and daring helped save his crew. After the War, this record helped him get elected to the U.S. Senate. In 1953 his younger brother, Bobby, became a staffer to one of father Joe's favorites, Senator Joseph McCarthy. This is another nice touch in the Kennedy saga. When Joseph McCarthy is now commonly portrayed as one of the worse people in American history, if not in world history, with an anti-McCarthy movie released as recently as 2005, it is now all but incomprenensible, especially in Democratic politics, how Joe, Jack, and Bobby could all have liked him and even exhibited considerable loyalty to him. Indeed, the godfather of Bobby's first child -- Kathleen Kennedy Townsend, recently the Lieutenant Governor of Maryland -- was none other than Joseph McCarthy. When the Senate censured McCarthy in 1954, Jack just happened to be away for (elective) back surgery; and Bobby quietly attended McCarthy's funeral after he died in 1957. Years later, Bobby would not make negative statements about McCarthy, even when they were solicited by the press; and as Attorney General, Kennedy's own pursuit of Jimmy Hoffa used the methods he had learned on McCarthy's staff.

What the association of the early Kennedies with Joseph McCarthy shows is the seriousness of their anti-Communism. Whatever the excesses or irresponsible actions that may be attributed to McCarthy, they pale besides the lies, distortions, and confusions that are now perpetuated about what McCarthy did or stood for. Indeed, to many, "McCarthyism" is simply synonymous with anti-Communism, which is regarded as having been a "witch hunt" for offenders who didn't even exist, or, if they did exist, had a perfect right to do what they did, which was harmless or healthy dissent anyway. Unfortunately for this complacent and often disingenuous conceit, there were Communists, they were agents of the Soviet Union, their hero, Josef Stalin, was busy murdering people by the thousands and enslaving millions, and the purpose of the Communist Party was, on Moscow's pay and orders, to impose a Soviet regime on the United States and the world. This was not harmless or honest dissent. It was espionage, sabotage, and treason. Joseph McCarthy had little to do with exposing or prosecuting most of it. Many people apparently think that Senator McCarthy ran the House Un-American Activities Committee (HUAC). Some seem to be able to put those together in one sentence without realizing that it contains a contradiction [note]. In turn, few of the innocent liberals supposedly hounded by HUAC were not Communists. McCarthy himself investigated the State Department and the Army. Unfortunately for him, such targets produced the largest number, not of innocent liberals, but of politically gored oxen. Despite his actual popularly with Americans, despite the aid the McCarthy certainly provided for the election of Dwight Eisenhower in 1952, McCarthy's fall came largely through withdrawl of the President's support. As I have noted, it did not come with any help from Jack or Bobby Kennedy. Father Joe himself told Richard Nixon in 1960 that, if it were not Jack running for President, he would vote for Nixon -- another anti-Communist despised by the Left nearly as much as McCarthy.

When John Kennedy was then elected President, his famous inaugural address made his anti-Communism clear. Kennedy said, "Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty." Later, at the Berlin Wall, Kennedy dramatized American support for a free Germany by saying, Ich bin ein Berliner. (Apparently he should have just said Berliner, since ein Berliner means a kind of breakfast pastry!) Later, when Bobby Kennedy, as a Senator from New York, turned against the war in Vietnam, the war for which Jack was largely responsible, this signaled a turn by the Kennedies to the Left. How far Bobby would have gone, we will never know, but there is no doubt that subsequent Kennedy politics has been pretty uniformly for leftist and socialist causes. Younger brother Ted Kennedy, as the all but perpetual Senator from Massachusetts, contributed little to American politics apart from constant pressure for the destruction of American principles and institutions. The younger generation of Kennedies has generally gone in the same direction, as has the Democratic Party in general -- which now harbors the most anti-American elements that still participate in mainsteam American politics, even after thousands of Americans were killed by Terrorists on 9/11. After all, to the likes of Michael Moore, conspicuously featured at the 2004 Democratic National Convention, it is the United States itself, as the home of capitalism, that is the true enemy of humanity.

While father Joe Kennedy was Ambassador to Britain, his daughter Kathleen became romantically involved with the family of the Dukes of Devonshire. This occasioned some difficulties, since the Cavendish family did not want a Catholic marrying in, and Rose Kennedy was adamant against Kathleen marrying a non-Catholic. Nevertheless, Kathleen married William, the heir to the title. This made her the Marchioness of Hartington. Only her brother Joe (Jr.) from the Kennedy family attended the wedding. As it happened, both William and Joe were soon killed in the War. Kathleen herself was killed in a plane crash in 1948. Kathleen Kennedy Townsend, whose full name is Kathleen Hartington Kennedy Townsend, was named after the Marchioness. William's younger brother Andrew, who then became the 11th Duke of Devonshire, was married to the youngest of the famous (or infamous) Mitford sisters, Deborah.

The Kennedies have not been nearly as successful in American politics as might be expected in great measure because of a combination of tragedy and scandal. Both Jack and Bobby, of course, were assassinated. Since Jack was killed by a Communist and Bobby by a Palestinian, the Left has spent decades trying to prove that it was really the Right, Neo-Nazis, gangsters, the Pentagon, or Lyndon Johnson personally (or all rolled into one) that were responsible for the killings. This reveals little but the targets of the Left's own animus. The political hopes of the groomed successor to the ambitions of Jack and Bobby, brother Ted, sank for good with his car, and with the young Mary Jo Kopechne, in the dark waters between Martha's Vineyard and Chappaquiddick Island. This did not prevent him from continuing as Senator for Massachusetts, but it did mean that he would not have much hope of surviving a Presidential race. When he did try to run for President, it was an ill judged attempt to unseat a President of his own party, Jimmy Carter. The only real effect of this, besides to further discredit Ted, was probably to help in the election of Ronald Reagan. Subsequently, Kennedy often seemed the worse for drink, with slurred speech and incoherent remarks. On other occasions he was self-controlled enough, but he almost seemed to be continually reelected more by divine right than anything else. After Kennedy died of a brain cancer, the voters of Massachusetts astonishingly elected Republican Scott Walker to his seat in 2010, breaking the fillibuster-proof majority that the Democrats had in the Senate as a result of the 2008 election. This would have prevented the passage of the tyrannical ObamaCare socialized medicine law, but the unprincipled Democrat Senate leader, Harry Reid, changed the rules to get the bill through (without a single Republican vote). Subsequently, the voters reverted to their characeristic folly by electing the repellent socialist Elizabeth Warren to the Senate.

In the diagram, I have almost all the grandchildren of Joe Senior and Rose Kennedy, and a few of the great-grandchildren. There are, indeed, many, many great-grandchildren. The younger generation has been in politics both in Congress and Statehouses, though, as noted, perhaps less than we might expect. What looked like the most hopeful career, that of Joseph Kennedy II, may have foundered on his divorce, when he got his first marriage annulled so that he could remarry in the Catholic Church. His first wife didn't take to kindly to this, and his Catholic public may not have either. So he is back to private political acitivism and out of Congress. This activism has become that of a particularly extreme and nasty environmentalism, with Kennedy calling for the prosecution and imprisonment of "Climate Change Deniers," i.e. anyone, in line with traditional scientific method, who questions the received wisdom (the "consensus") about climate and global warming. These are "bastards" to him, which would seem to violate the principles of "civility" (insincerely) preached by the Democratic Party. Kennedy thus has as little understanding of scientific method as he does respect for free speech, although this combination is no longer unusually in academia and the media.

The fate of Joseph II's brother, who worked with Joe and uncle Ted, however, was worse. Michael Kennedy's marriage broke up over his affair with a babysitter, and then he was killed (like Sonny Bono, about the same time) in a skiing accident. Another brother, David, died of a drug overdose. Their sister, Kathleen Kennedy Townsend, elected Lieutenant Governor of Maryland, was nevertheless defeated trying to run for Governor. Patrick Kennedy, a son of Ted, has been a Rhode Island Congressman with the reputation of drug problems and encounters with the law. The most interesting was Kennedy crashing his car into a Capitol Hill barricade early in the morning in May 2006. Witnesses reported him acting intoxicated, but the Capitol Police drove him home without alcohol or drug tests (to subsequent recriminations). He later said he had suffered from prescription drug side effects, but checked himself into a drug rehabilition clinic anyway. The most spectacular political success in the family may have been that of an in-law, and a Republican to boot, namely the husband of NBC television reporter Maria Shriver, the bodybuilder and movie star Arnold Schwarzenegger, who became Governor of California in a 2003 recall election against Democrat Gray Davis. Arnold, however, ended up as all-too-Kennedy a Kennedy in-law, with a crash-and-burn political career and a similar meltdown for his marriage, as he was revealed to have fathered an illegitimate child on one of the family maids. The catastrophe of both his political and personal life probably would have left his erstwhile mentor, the great Milton Friedman, in tears.

The worst scandals in the family may have been away from the political spotlight. In 1991 William Kennedy Smith was accused of rape, after an evening of drinking with uncle Ted and his cousin Patrick in Palm Beach, Florida (ending up at the house where father Joe had entertained Joe McCarthy). After a sensational trial, Smith was acquitted, but he has recently continued to be dogged by sexual harassment charges. Worse would be the charges against Kennedy in-law Michael Skakel, a nephew of Ethel (Skakel) Kennedy, Bobby's widow. In 2002 Skakel was convicted of the 1975 murder of Martha Moxley, a neighbor of the Skakels. Legal action and controversy over this ugly business is likely to continue for some time.

Few tragedies in the Kennedy family, however, have been quite as tragic as the death of John Kennedy, Jr. ("John John") and his wife in 1999. Kennedy was flying himself, his wife Carolyn, and her sister, Lauren Bessette, in a small plane from New York out to Martha's Vineyard. He apparently became disoriented in the dark and crashed into the ocean. After a brief career as a lawyer, Kennedy had begun a mild political magazine, George. Kennedy was personable and agreeable enough that his death earned a moving tribute from a surprising contributor to his magazine, right-wing firebrand (there is nothing else to call her, and she wouldn't deny it) Ann Coulter. Kennedy and his wife had made a very handsome couple and were definitely the most royal of the royal in the Kennedy family.

After all these misadventures, there is much talk of a Kennedy "curse." This was invoked by Ted himself, though in a self-serving way, over evils that were largely self-inflicted. Genuine tragedies there have been, but otherwise elements of bad judgment (as in John Jr.'s plane flight) and bad behavior (John, Ted, William, Patrick, Joe II, Michael, etc.) have not been lacking. The "curse" may simply be a combination of the wealth and fame that draw unwanted attention but also may promote arrogance and irresponsibility. Most in the diagram, indeed, can live relatively quiet, retiring, and normal family lives -- though I think Martha's Vineyard is definitely a place of ill omen for Kennedies. If there is to be more Kennedy politics, it would be nice to get a return to the more commendable political instincts of President John. For a while, it looked like in-law Arnold Schwarzenegger had the best chance of doing that. But Arnold managed to turn his politics, his marriage, and even his tributes to Milton Friedman into object lessions of failure and betrayal. The "curse" seemed to be catching.

American Families in Business and Politics
The Du PontsThe AstorsThe VanderbiltsThe Johnsons
The RockefellersThe Roosevelts & DelanosThe Hearsts
The KennediesThe HiltonsThe FordsThe Bushes

President John F. Kennedy

Political Economy

Philosophy of History

Home Page

Copyright (c) 2006, 2009, 2011, 2015, 2018 Kelley L. Ross, Ph.D. All Rights Reserved

The Kennedies, Note

I recently found an example of this in a curious place. In a book of essays about the recent science fiction series Firefly -- Finding Serenity, Anti-Heroes, Lost Shepherds and Space Hookers in Joss Whedon's Firefly [Jane Espenson, editor; BenBella Books, Dallas, 2004] -- one of the essays, "Serenity and Bobby McGee: Freedom and the Illusion of Freedom in Joss Whedon's Firefly," by Mercedes Lackey, contains the following:

...Senator Joseph McCarthy was systematically hauling up anyone who dared to speak out for freedom of speech in front of the House Un-American Acitivities Committee. The examples then were clear:  support Tailgunner Joe's agenda, or you never worked again, whether you were a famous scriptwriter or a white-collar clerk in a business. [p.65]

It apparently never crossed Ms. Lackey's mind that Senator McCarthy would have nothing to do with a House committee. The distortion here that is not just a matter of logic alone is that HUAC did not subpoena people just for daring "to speak out for freedom of speech." The "scriptwriters," like the Hollywood Ten (Dalton Trumbo may be who she has in mind), only talked about "freedom of speech" because they didn't want to answer questions about what they were doing or what they knew. They all actually were Communists. They did not believe in freedom of speech, of which there was none in the Soviet Union, nor did they ever avail themselves of freedom of speech by publicly stating what their political beliefs were. The only one of them that came close to that was Bertolt Brecht, who answered the questions of the Committee in a quite friendly and apparently open and honest fashion -- lying like hell of course -- but then avoided the consequences of his lies, and expressed his true loyalties, by decamping to East Germany -- where he lived, as it happens, with a Austrian passport, West German publishers, and Swiss bank accounts (by which I take it that his true loyalties were ultimately to himself).

The final distortion in so short a statement was the notion that Joe McCarthy, or HUAC, had something to do with the employment of people in private jobs. The Black List, by which "screenwriters" were kept out of Hollywood, was a creation of Hollywood Producers, who wanted to reassure the public that they were not employing Communists or their facilitators ("fellow travelers" at the time). Since blacklisted writers could, like Trumbo himself, write under pseudonyms, or actors, like Zero Mostel, could move to Broadway, the Black List was hardly a way of shutting people out of employment altogether. Ms. Lackey perhaps thinks that people were begging on the street because Joe McCarthy denied them employment. No, it was in the Soviet Union, not America, that the government could deny employment to people altogether for political reasons. Since Ms. Lackey apparently regards the United States as having only the "Illusion of Freedom," whether in the Fifties or later, I will reserve a suspicion that she has, in turn, no particular objection to the form of "freedom" that existed in the Soviet Union. Her real objection, like that of the Hollywood Ten, was not lack of freedom in America, it was exposure of the true beliefs and objectives of the Left. The true complaint of the Left is not that it isn't heard -- for whatever lies, distortions, and accusations they choose to voice -- but that it is contradicted. The behavior of the Left on college campuses reveals this in the clearest way, where hiring, firing, "speech codes," and harassment have recently served, not to oppress the Left, but to silence anyone who disagrees with it. This is called "political correctness," a notion all too familiar from Stalinism; but, of course, the Left likes to deny that there is any such thing.

Return to text