In the twentieth century, the legislative powers of Congress became essentially unlimited. Is the Congressional subpoena power likewise unlimited?
The Civil Rights Act of 1964 is surely the most renowned piece of legislation enacted in 20th century America. It stands (with the Voting Rights Act passed the following year) as the culminating achievement of the Civil Rights movement, itself now enshrined in conventional opinion as the latest and greatest of America’s great awakenings. By that movement the nation was stirred at last to confront, in the matter of race, its most profound and chronic bedevilment.
The moral authority now almost universally accorded the Civil Rights Act and the movement that inspired it has not foreclosed, perhaps indeed has intensified, controversy over the law’s meaning and operation. At the surface, those controversies concern race classifications in public policy. At deeper levels, they implicate profound questions concerning the nature of civil rights themselves, along with the natural rights and natural laws from which they derive.
Professor William B. Allen addresses the Act not primarily as law or policy, therefore, but as political philosophy. As a result of his inquiry into the philosophic vision informing the law, an essay on the Civil Rights Act becomes an essay on Martin Luther King, Jr., whom he singles out as the preeminent spokesman of the civil-rights thinking that stands, for many in our own day, as the authoritative legacy of the Civil Rights Movement. Given the virtually unrivaled moral authority accorded King by 21st century Americans, Professor Allen’s concluding judgment of him—“King . . . failed”—is attention-getting, certainly in its bold directness if not also in its countercultural substance.
King aspired to be America’s refounder, aiming to bind the nation in a new, truly universalist spirit of “community” and thereby to ward off the “chaos” that loomed in the mid-through-late 1960s. He ultimately failed in that grand enterprise, Professor Allen contends, because he endeavored to refound America on a flawed understanding of rights—on principles, that is, whose strongest tendency is rather to deepen the divisions among us than to strengthen our sense of community or common humanity.
In Professor Allen’s account, King began by aspiring to refound America in a relatively modest, moderate sense—to complete the work of the original founders, or to redeem, as King said in his most famous speech, the “promissory note” the Founders signed but could not themselves make good. That relatively moderate, ostensibly Lincolnian ambition to make good the original Founders’ principles was at once urgently necessary and noble in a very high degree. Yet King ended with a desperate call for a much more radical refounding, a sharp departure from the original Founders’ principles. It is that departure that not only doomed King’s project to failure but continues to confuse our understanding of civil rights.
Civil rights are properly defined, Professor Allen maintains, as “the rights to common or equal participation in civil society.” This conception of civil rights expresses the Founders’ understanding, best articulated by James Wilson in his Lectures on Law (1791), and it seems to be affirmed by King, too, as he reached the rhetorical peak of his career in 1963. “I have a dream,” King declared, in what became the most renowned speech by any American since the days of Lincoln, of a society in which all would be judged as to their rights and deserts “not by the color of their skin but by the content of their character.” That understanding of civil rights, entailing equal liberty under law and equal access to civil and public institutions, irrespective of color, was codified in law with the passage of the Civil Rights Act the following year.
For King, however, the passage of the Civil Rights Act and then of the Voting Rights Act in 1965 marked the completion of only the first phase of the movement for full and equal rights. Whereas the first phase was aimed at securing the civil and political rights proper to individuals in their formal identities as persons and citizens (including rights of association, rights of access to public accommodations, educational institutions, and workplaces, and rights to vote and to seek public office), a “second phase,” aimed at “the realization of equality,” would seek to achieve specific substantive, socioeconomic outcomes. The latter, in other words, concerned the fruitful exercise of rights as distinct from the legally guaranteed possession of rights. “Negroes must not only have the right to go into any establishment open to the public,” King insisted, “but they must also be absorbed into our economic system [so] that they can afford to exercise that right.” As Professor Allen notes, President Lyndon Johnson expressed the idea with blunt simplicity at Howard University in 1965: “freedom is not enough… We seek…not just equality as a right … but equality as a fact and equality as a result.”
By conceiving of rights ultimately in terms of substantive, distributive outcomes, Professor Allen charges, King implicitly adopted an incoherent and demoralizing idea of the human person, the bearer of the rights for which he contended. This is a profound and far-reaching charge, the basis and significance of which warrant further elaboration.
At issue between King and some of his thoughtful critics are both their divergent diagnoses of the proximate causes of lingering black disadvantage and their suggested remedies. For King, working amid circumstances in which the opinion of blacks’ natural inferiority remained widespread and socially powerful, it was a moral and prudential imperative to argue that the causes of black socioeconomic disadvantage were not natural but conventional. This is what he meant by the claim, quoted by Professor Allen, that the “crisis” in blacks’ condition was “culturally and socially induced.”
In our own day, however, the debate over the causes of persisting black disadvantage is no longer framed by the antinomy of nature versus convention (or “culture” in the sense in which King used the term). It is instead commonly framed by the antinomy of culture versus structure, with “culture” denoting the complex of institutions, customs, opinions, and sentiments that operate to form (or deform) individuals’ moral characters, and “structure” denoting the political-economic institutions and policies within which individuals operate in their efforts to improve their material conditions.
Viewed by reference to the latter terms of debate, King appears clearly as a proponent of structural explanations of black disadvantage. In that same passage quoted from Where Do We Go From Here: Chaos or Community? (1967), he contended that the “root” of that disadvantage was “pervasive and persistent economic want” and that a “fair opportunity for jobs, education, housing and access to culture” would suffice as a remedy. He conceived of a “fair opportunity,” however, quite expansively, involving both an expanded array of rights and an expanded array of governmental powers and duties to effectuate them. From 1963 onward, King called upon Congress to enact “a broad-based and gigantic Bill of Rights for the Disadvantaged,” designed to “guarantee a job to all people who want to work and are able to work” and “an income for all who are not able to work.” In his final book, without renouncing the preceding demand, he focused on a simpler and more radical proposal: “The solution to poverty is to abolish it directly by . . . the guaranteed income.” By whatever means, he believed, “the time has come for us to civilize ourselves by the total, direct, and immediate abolition of poverty.”
What is most striking, however, about King’s proposed remedies is not the magnitude of the social-insurance and welfare state that he envisioned; it is the confidence that he expressed in anticipating those remedies’ profoundly uplifting effects. Firmly convinced that the proximate causes of the disadvantaged condition of many blacks were structural and political-economic in character, he expected his programmatic remedies to “immediately transform the conditions of Negro life,” a transformation no less moral than material. With those remedies in place, he predicted, “[T]he decline in school dropouts, family breakups, crime rates, illegitimacy, swollen relief rolls and other social evils would stagger the imagination.”
It seems safe to observe that experience has not vindicated King’s optimism. For present purposes, however, a more fruitful inquiry concerns why King was so optimistic about the prospects for a prompt transformation of the condition of impoverished blacks, given the seeming pessimism that Professor Allen notices in his account of the black “dilemma.”
King was deeply impressed by the damage that centuries of subjection to injustice had cumulatively wrought. One hundred years after Emancipation, he lamented in the “Dream” speech, “the life of the Negro is still sadly crippled”—not only presently confined or shackled, but crippled, disabled—“by the manacles of segregation and the chains of discrimination.” Such characterizations of the condition of black Americans would seem to cast grave doubt on their near-term prospects for full, fruitful integration into the mainstream of American society. Yet King’s optimism, reflecting in part the faith of the progressive Left in the power of governments to engineer desirable social outcomes, reflects also his judgment that the limited forms of agency that remained available to black Americans were yet adequate to their most important purpose.
However debilitating and demoralizing the long subjection to the regime of white supremacy in its various forms, that experience did not destroy blacks’ power of taking action in their own cause. In his “Dream” speech, King celebrated “the marvelous new militancy” that had re-emerged among blacks in the mid-20th century. The spirit of protest against injustice was the one thing needful in the circumstances, he believed, because creative, affecting protest was the precondition for salutary governmental action, and salutary governmental action was the precondition for the development of a fuller range of virtues, or modes of self-elevating agency, among blacks.
As Professor Allen suggests, King’s tendency to conceive of black agency, the core of black personhood, as protest risks becoming habituated and thus degenerating over time into a self-degrading, self-defeating paradox: agency as the active assertion of one’s own weakness and dependence upon others.
In a deeper sense, this paradox in King’s idea of black agency is an expression of his zeal for revolution, or his powerful attraction to the idea of immediate and radical, systemic change. Professor Allen’s closing comments indirectly suggest that amid that zeal may be a Machiavellian sort of ambition. To conceive of his people as suffering the depth of degradation and disability would certainly appeal to one who, seeking the glory proper to the founder of new orders, understood that the greatest glory would belong to one who led his people in rising from the lowest beginnings. A more powerful source, however, is surely King’s Christian faith.
From his particular mode of Christianity, King derived his beliefs in the possibility of radical redemption and rebirth, both for individuals and societies, along with his apocalyptic, millenialist conception of history, all grounded in the simple idea that “God is able”—able to bring the greatest good out of the deepest misery or evil. That faith was the source of much of King’s moral greatness, but as the deep source of his revolutionary zeal, it also engendered some of the problematic elements of his thinking. In those problematic elements inhere lessons for today’s partisans, both for those on the Left and for those on the Right, in matters concerning race.
Those on the Left, typically adherents of the structuralist view of the causes and remedies of black disadvantage, would do well to consider the weakness in King’s argument that changes in political-economic institutions and policies would promptly enhance the morale and virtue of their intended beneficiaries. Such a consideration might lead them to perceive the good sense in their counterparts’ argument that differences in moral culture must play a primary role in any tenable explanation of group differentials in socioeconomic outcomes. In the same vein, it might lead them to appreciate the urgent need to foster among society’s most profoundly impoverished members the full range of qualities or virtues required for personal and political self-government, and the corresponding need to rebuild the institutions of civil society (families and schools above all) properly charged with the formation of moral and civic character.
This last point stands among the most important and salutary insights of the conservative side of today’s arguments about race. Yet it also contains a useful admonition for many on the Right. For good reason rejecting the progressive Left’s zeal for immediate reform via redistributive public policy, the Right might nonetheless recognize its own variant of excessive revolutionary zeal, that is, its belief that securing equal formal rights has resolved the race problem. Is there not a certain Burkean wisdom in the thesis of cumulative racism, holding that a long tradition of injustice, with all its social, psychological, and cultural effects, could hardly come to an end, sharply and conclusively, in a day or a generation? Conservatives might well beware the temptation to declare the end of racism, or of disadvantage ultimately traceable to racism, at hand with the passage of the Civil Rights and Voting Rights Acts.
What does it mean to live, as Professor Allen puts it, “in accord with the law of nature”? If, in part, it means cultivating the virtues required for success in school, in the workplace, in the offices of marriage and childrearing—and in so doing, laying the indispensable foundations of self-governing, republican citizenship and genuine human flourishing—then we might well acknowledge the portion of truth in President Johnson’s and Rev. King’s contention that “freedom,” or the securing of the requisite opportunities, “is not enough” to sustain a confidence that that work will actually be done. Unless we believe that the natural law is self-enforcing, so that the natural consequences of violating it are so clear and forceful as to ensure our conformity with it—a belief that seems unsupported by the experience of human history—we must believe that the natural law, to be effective, requires support from a properly formed moral culture. And unless we are willing to commit substantial social and moral energies to the building or rebuilding of the institutions constitutive of such moral culture, then misconceived governmental remedies of the kind that King supported will seem the only alternative, and arguments in defense of a properly confined understanding of civil rights will fail.
What is at stake in such efforts, then, is the fate not only of race relations in the U.S. but also that of limited constitutional government.
 King, “I Have A Dream,” in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr., ed. James M. Washington (New York: HarperCollins, 1986), 217.
 Ibid., 219.
 King, Where Do We Go from Here: Chaos or Community? (Boston: Beacon Press, 1986, 1968), 3-4.
 King, Why We Can’t Wait (New York: New American Library, 1964, 1963), 135-36.
 Lyndon B. Johnson, “Commencement Address at Howard University: ‘To Fulfill These Rights,’” June 4, 1965, accessed May 30, 2014 at http://teachingamericanhistory.org/library/document/commencement-address-at-howard-university-to-fulfill-these-rights/.
 King, Why We Can’t Wait, pp.136–141; A Testament of Hope, p. 67.
 King, Where Do We Go from Here? pp. 171, 175.
 King, Why We Can’t Wait, pp. 137–138; cf. A Testament of Hope, 247.
 King, A Testament of Hope, 217.
 Ibid., 218.
 King, “Our God is Able,” in Strength to Love (Philadelphia: Fortress Press, 1981, 1963), 107-14.