Yes, we built it; can we repair it? Pt. 10

Goldwater wrote in The Conscience of a Conservative about civil rights which included the decision in Brown v. Board of Education.  He wrote

A civil right is a right that is asserted and is therefore protected by some valid law.  It may be asserted by the common law, or by local or federal statutes, or by the Constitution; but unless a right is incorporated in the law, it is not a civil right, and is not enforceable the instruments of the civil law.  There may be some rights – natural, human, or otherwise that should also be civil rights.  But if we desire to give such rights the protection of the law, our recourse is to a legislature or to the amendment procedures of the Constitution.

So it would seem that the legislature would have the authority to give the civil rights to those who want equal housing or a law that would prohibit discrimination.  However, he wrote further about the ruling in Brown v. Board of Education which he assures his readers that he supports the decision because he supports racially integrated schools but that the decision was reached by unconstitutional grounds.

For the Federal Constitution does not require the States to maintain racially mixed schools.  Despite the recent holding of the Supreme Court, I am firmly convinced—not only that integrated schools are not required—but that the Constitution does not permit any interference whatsoever by the federal government in the field of education…I have great respect for the Supreme Court as an institution, but I cannot believe that I display that respect by submitting abjectly to abuses of power by the Court, and by condoning its unconstitutional trespass into the legislative sphere of government.

Again, the Rumford Act was passed by legislative means which he maintains is the only way that a civil right can actually be enforced.  He then talks about the Supreme Court trespassing into the legislative sphere of government.  The Rumford Act was the sole sphere of the legislature.

Further, Goldwater argues against the direct democracy of constitutional amendments passed by the people arguing that the Constitution was written against a “a tyranny of the masses.”  He wrote

Was it then a Democracy the framers created?  Hardly.  The system of restraints, on the face of it, was directed not only against individual tyrants, but also against a tyranny of the masses.  The framers were well aware of the danger posed by self-seeking demagogues–that they might persuade a majority of the people to confer on government vast powers in return for deceptive promises of economic gain.

Goldwater when writing about civil rights quotes from the Civil rights Act of 1866 to establish what constitutes a civil right.

that people of all races shall be equally entitled to make and enforce contracts, to sue be parties, and give evidence, to inherit to purchase, lease, sell, hold and convey real and personal property and to full and equal benefit of all laws and proceedings for the security of persons and property.

While all races could hold property, landlords could discriminate from those based on race or color which would prevent those from being able to lease real and personal property which would be a violation of their civil rights, if you include what Goldwater states.  Goldwater goes through the semantics of being able to discriminate against those tying to pursue an education because it is not specifically mentioned in that act nor that it was argued that the act would include integrated education.  I am providing a bit of semantic argument for Goldwater that the Rumford Act was merely a legislative process that helped ensure no violations of the 14th Amendment and the Civil Rights Act of 1866. We will talk much more about Goldwater at a later date.

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