If there's a Constitution on the wall in the first act...

Something I mentioned in a previous post but never quite backed up: Americans don't really care about the letter of the law. Ta-Nehisi Coates pillories Larry Craig but gives John Edwards a pass because Craig was arrested on a misdemeanor? Visceral hostility towards the large Hispanic family camped out by your favorite fishing hole is motivated by the feeling that they broke the law getting here and not by the fact that they're brown? If you believe these things, you need to meet a friends of mine.

The rule of law doesn't matter when the field of battle is cultural. Some shameful things are not illegal; some illegal things are not shameful. But what happens when the line between political and cultural battles gets blurry? William Voegeli's piece in the summer Claremont Review of Books, "Civil Rights and the Conservative Movement," makes the point (read carefully for the surveillance comparison and for the last line):

Harsh as it is, this liberal accusation misses an important point: the hardest question the triumph of the civil rights movement raises about conservatism is not whether its stated purpose of restoring the founders' republic was a ruse designed to perpetuate racial inequality. Rather, it is to what extent that sincerely held belief was ever feasible and coherent. The troubling incongruity is not conservatives' initial tolerance of segregation for the sake of limited government, but the later, tacit admission that America did well to expand the purview of the federal government in order to end Jim Crow. Trent Lott had only to suggest lightly that relying on those means to secure that end was still regrettable to set off a stampede of conservatives to denounce him.

The problem is that conservatives' acquiescence, long after the fact, in using Big Government to abolish segregation is the kind of exception that devours the rule rather than proving it. This is so particularly because it is not the lone exception. To take one example, modern conservatives have been more disposed than liberals to say that the exigencies of the wars against Communism and Islamic terrorism require, in George Will's disapproving words, the "silent repeal" of the Constitution's assignment to Congress of important powers over whether to go to war and how to wage it.

By the same token, conservatives have long agreed with liberals that the imperative to maintain and expand prosperity requires a federal government equipped with all the powers it needs to accomplish that goal. This was the burden of an article Walter Lippmann wrote in 1935, "The Permanent New Deal." He deduced the permanency by arguing that the Hoover and Roosevelt administrations had spent the foregoing six years contending with the Depression in ways that were far more similar than different. The bitter arguments of the day, according to Lippmann, masked the fact that Hoover and FDR had much more in common with one another than either did with their immediate yet distant predecessor, Calvin Coolidge. The bipartisan embrace of federal intervention for the sake of prosperity, continuing by such means and until such time as prosperity is restored, meant that the Coolidgean idea that it was better to suffer macroeconomic dislocations than constitutional ones was a dead letter.

Conservatives spent the 20th century drawing lines in the sand, in other words, before stepping back to draw new lines after the old ones were disdainfully trespassed. It's the kind of thing that leads to credibility issues.

As long as we frame them as questions about legal lines in the sand, sacrificing states' rights to end Jim Crow isn't more defensible than abridging individual rights to catch terrorists. But that's not how they're framed. When the federal government's power over states is expanded, it makes me think I should be scared someday soon. When the federal government plays fast and loose with individual rights, it makes me scared right now. Individual rights are sexy; gubernatorial powers aren't.

They shouldn't have to be, but, given that they're not, conservatives who would protect them are left holding nothing but the letter of the law, which, as X pointed out, ain't much. Such are the dangers of fighting political battles with cultural weapons, and vice versa.

One solution would be to give the letter of the law a little of the old razzle-dazzle: "When the last law was down and the devil turned around on you, where would you hide, the laws all being flat? Tune in next week to find out!"

[Of all the defenses Buckley made of his civil rights position, this was certainly the funniest.]