This op-ed originally appeared in the Hartford Courant, December 17, 2002.
by Jack M. Balkin
Senate Republican leader Trent Lott is on the ropes. Even President George W. Bush has rebuked him strongly for his endorsement of Sen. Strom Thurmond’s racist 1948 presidential campaign. But the real issue is not how Sen. Lott feels about the past. It is how he and other American politicians feel about civil rights in the present.
Politicians of all political stripes are piling on Lott because it is clear that what he endorsed was evil. It is easy and safe to denounce the evils of the past. It is more difficult to denounce denials of civil rights in the present. It takes little courage to condemn Lott’s remarks today. It took real courage to stand up to racism in 1948.
The United States has a long history of progress in securing equality and human rights for its people. That progress has often been slow and halting, but it has been real. Basic rights and liberties once enjoyed by a dominant majority or a privileged few have gradually been extended to more and more of our citizens.
The flip side of this story of progress, however, is that there is much in our past to be ashamed of. Certainly Sen. Thurmond should be ashamed of much of his career as a defender of Jim Crow laws and an opponent of racial equality. But he is hardly the only American politician who should feel contrition for positions taken on civil rights. In our own day, politicians aggressively defend positions on civil rights from which, someday, they will be all too eager to distance themselves.
The problem is that Americans have found it difficult to learn from their past and protect basic civil rights in the present without a long and agonizing struggle.
Consider two examples:
It takes no poet’s imagination to recognize that homosexuals will eventually be granted basic civil rights in this country. Sodomy laws will eventually be repealed or held unconstitutional in all 50 states. Gays will eventually be protected from discrimination in employment and housing throughout the country, and they will be able to serve proudly and openly in our nation’s military. Someday, in the not too distant future, Americans will deeply lament how they treated their fellow citizens and the often vicious homophobic rhetoric they used to condemn gays and “the homosexual agenda.” Even Sen. Lott, one assumes, will someday regret comparing homosexuals to kleptomaniacs. But if we can already see that we will be ashamed in the future of what we do now, we should not continue to do it. Congress should immediately pass basic anti-discrimination laws protecting gays and lesbians. That is better than any heartfelt apology delivered years later.
Next consider civil liberties in wartime. Throughout American history, government officials have repeatedly denied civil liberties on grounds of national security, only to regret their decisions many years later. Congress eventually paid reparations for the internment of Japanese American citizens. The modern law of the First Amendment is essentially a rejection of the government’s policies during World War I and the McCarthy era. Repeatedly we have shown remorse for our overreaction; there is hardly a single example of wartime suppression of which we are proud today. Someday too, we will regret the secret detention of Muslims, the expansion of domestic surveillance and the denial of basic Bill of Rights protections to American citizens like Jose Padilla. If we can see that we may regret these things in the future, we should not do them in the present.
One may argue that what we do today is not of the same order as what we did then. But the same excuse could easily have been made in the past. One could defend opposition to black civil rights in 1964 on the grounds that no one was proposing a return to chattel slavery; one could justify firing people for their beliefs during the McCarthy era on the grounds that they were not being thrown into prison as in World War I. In every age, we must face the difficult civil rights challenges of our own era. We cannot excuse today’s injustices by pointing to how much worse we were in the past.
Apologies from Sen. Lott are certainly nice. But I would rather that he, and every other politician, take a long, hard look at themselves and their civil rights policies, and resolve not to do today what they will have reason to apologize for tomorrow.
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School and author of “The Laws of Change” (Schocken Press, 2002).