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Sunday, September 1, 1985

A Reviewers Notebook: Disabling America

If you ask him, Richard E. Morgan, the author of Disabling America: The “Rights Industry” in Our Time (New York: Basic Books, 245 pp., $16.95), would surely deny that he is a hardline authoritarian. A professor of constitutional law at Bowdoin, he believes in what our forefathers called the “Rights of Englishmen.” This presupposes a traditionally liberal, if not a libertarian, spirit, and in all candor Mr. Morgan, on the last page of his book, warns his readers that a “society without a rights industry is just as uncomfortable to contemplate as a society without policemen.”

It’s all a question of balance, however, and Richard Morgan, no ideologue, has felt constrained to come down on the side of common sense. He takes it seriously that we live under a Constitution whose words, if accepted in an ordinary dictionary sense, guarantee both the rights of individuals and of the society as a whole. In short, Richard Morgan is no extremist. But there are thousands in his own legal profession who are making a good thing of what he calls the “rights industry.” The “new class” of interest group publicists and advocates, activist lawyers and New Day liberal law teachers has, as he puts it, “run amok.”

Going amok happens to be good for the incomes of activist lawyers, but Richard Morgan does not question the sincerity of the rights industry. In his kindly opinion the activists no longer see the forest for the trees. They can’t read the First Amendment correctly. And they twist the civil rights legislation, and such Supreme Court rulings as Brown vs. Board of Education, into some very strange shapes.

Morgan sums up the disruptive aims of the rights activists under five headings. Number one, they are doing their best to isolate the churches. Two, they are disabling the public schools. Three, they are enfeebling law enforcement all across the board. Four, they make it impossible to maintain old-fashioned order in areas that were formerly protected by such traditional groups as the family and the private association. And five, they insist on preempting private choice.

Common Sense Rights

What all this means is that people who consider themselves good libertarians are actually bent on depriving a big majority of citizens of their common sense rights. People who are religious find themselves at a disadvantage against those with no religion at all. The so-called secular humanists get free transportation to school and free laboratory equipment (for payment of taxes, of course). But if the Catholics or Methodists ask for their share of educational tax money for bus service or such laboratory equipment as Bunsen burners, which have nothing to do with the possible establishment of religion, they get a rude turndown.

Richard Morgan considers such discrimination to be an actual infringement of the First Amendment, which says nothing about depriving any group of state aid to education. The only thing prohibitive in the religious section of the First Amendment is the statement that the government shall not establish a national church. Paying for Bunsen burners may or may not be a good use of tax money for anybody (true libertarians would be against it as part of their animus against public schools), but it surely can’t be equated with the establishment of a national religion.

The Supreme Court majority, in Brown vs. Board of Education, simply decreed that de jure segregation in the public schools was an infringement of equal rights. The only thing required by the Supreme Court decision was that anybody, no matter what his or her color, could properly demand sitting room in whatever public schools the neighborhood provided. But the rights industry activists twisted the Supreme Court’s words around to support the “affirmative action” of busing to achieve quota representations of blacks in all schools, regardless of the neighbor hood distribution of population. Activist judges all across the land prescribed forced busing. The distraction of long-distance rides resulted in worse, not better, education for both blacks and whites. Meanwhile, the rights industry activists were busy taking disciplinary authority away from teachers generally. The busing troubles were piled on top of “blackboard jungle” conditions that made teaching a hazardous profession anyway.

In the matter of law enforcement, the Miranda case did for the cops what the no-summary- punishment rule had done for the teachers. Voluntary confessions of criminal activity were ruled inadmissible as evidence in court if they were made without due warning by the police that the Fifth Amendment guaranteed a right to silence. Richard Morgan is no supporter of third-degree torture to extract confessions, but he considers it a stupid departure from ancient wisdom if believable confessions made in a voluntary manner without the Fifth Amendment warnings or presence of a lawyer can’t be read to juries.

Morgan finds that traditional order in society can’t be maintained when judges make their personal predilections the foundation of their decisions. He quotes Judge Robert Bork, formerly of the Yale Law School, approvingly. With law school teachers advocating what amounts to avoidance of the Constitution as traditionally interpreted, there will occur, so Bork says, “the gentrification of the Constitution . . . . Non-interpretation leads a judge to find constitutional values within himself . . . the values which might loosely be described as characteristic of the university- educated upper middle class will be those that are imposed.”

The rights industry intellectuals frequently quote James Madison and Thomas Jefferson to sustain their attitudes. But Richard Morgan cautions the overzealous “new class” radicals to study the behavior of both Madison and Jefferson when they were in the White House. Jefferson, as President, signed into law acts of Congress “providing federal land grants to a religious body for ‘propagating the Gospel among the heathen’ (native Americans).” He also approved the use of federal money to support a Catholic priest in his priestly duties among the Indians. Madison, as President, issued four Thanksgiving proclamations. As a member of Congress he had sat in a committee that recommended the chaplain system. Regardless of their personal prejudices, neither Madison nor Jefferson demanded total separation of government and religion.

  • John Chamberlain (1903-1995) was an American journalist, business and economic historian, and author of number of works including The Roots of Capitalism (1959). Chamberlain also served as a founding editor of The Freeman magazine.