[This article appeared in the July/August 1993 issue of Conservative Review.]

From the Academy …

Affirmation and Distrust:

A Growing Polarity Within American Conservatism

Dwight D. Murphey

Two opposing tendencies, both justified, appear in the thinking of American conservatives. First, rejecting the alienation of the Left, conservatives affirm and defend the essential contours of our institutions, culture, ideals and history. But second, many conservatives see reason for intense suspicion toward much that is done today in the name of our society. This distrust can be so profound that a conservative may come to feel an alienation almost as complete as that of an Oliver Stone or a Jerry Rubin. In this article, Dwight D. Murphey examines both tendencies, and offers what he considers the best and perhaps only way to reconcile them in the future.

A few weeks ago, I enjoyed a long conversation over breakfast with a group of conservatives at a small inn in central California. The discussion ranged over many subjects, but its tone was largely set by a brilliant young lawyer from the east coast who expressed his virtual despair over the systematic abuses and machinations that he sees within the American justice system. By the end of the conversation, it was apparent that his disillusionment toward the workings of American law was every bit as deep as the alienation against “the Establishment” that we have so long heard from the Left.

I was struck by the contrast between that disillusionment, so well voiced and backed by so many incidents from his own experience, on the one hand, and the series of historical studies that I have been making over the past couple of years that have defended the actions of Americans and their government, on the other.

In my articles on the historic dispossession of the American Indian, on the World War II relocation of the Japanese-Americans, on Kent State, and on the Hollywood Blacklist (still to come), I have looked at a series of “hotpoint” issues that are used by the Left to excoriate the United States. Although I have sought on each of them to arrive at as objective an analysis as possible, and not simply to rush to a defensive posture, readers of Conservative Review will recall that I have found, as to each of those issues, that the carping of the Left has been an expression of its hatred for this country and not of a valid criticism of Americans or their government.

In this contrast between my series defending American society and the young lawyer’s despair, we see a growing duality of affirmation and well-founded disgust. It is a duality that exists within patriots who are ready to stand tall for all that they value, but who are nevertheless deeply disturbed not only by the events they witness, but also by what they see of the underlying character of so many of their contemporaries.

It seems to me that it is a mistake to become so totally immersed in either one – affirmation or anger – that we lose sight of the other. Both are justified, and each can be fit into a consistent philosophy and political program.

Later in this article I will analyze this polarity and suggest what can be done to bring its two sides together, but first it will be valuable to look at a number of specifics so that we can have a better feel for precisely what we are talking about. Keep in mind that the specifics I will point to are just illustrations of the two much broader tendencies.

Evidences of Deeply-Rooted Abuse

In the fevered context of late-twentieth century America, there are many serious indications that ideology, apathy and the arrogance of government are taking huge bites out of the freedom that Americans have enjoyed.

Ours has been a freedom to pursue the ends of the individual and the family within a legal and moral consensus. Perhaps the most delightful thing about it has been its easy-going nature; it has meant enjoying life without even a hint of fear. It has been an existence that few people on earth, unfortunately, have experienced.

A profound human divide is crossed when a people go from a life free of fear to one that is poisoned by it. We appear to be passing over that divide. [Note in 2003: Now, of course, after September 11, Americans have for that reason alone crossed this divide. This article, written before those atrocities, points to internal reasons for the change.] As to the law, it seems that in various ways it has lost its sense of balance, of due proportion. Zealous ends are pursued without regard to their consequences, and vital safeguards for individuals are brushed aside.

The Weaver and Branch Davidian cases. A great many Americans are uneasy about the apparent excesses of police action in Idaho in the Randy Weaver case and in Waco, Texas, in the Branch Davidian confrontation.

First, a couple of caveats: Because I haven’t made a definitive study of either case, I don’t feel prepared to judge them. I will simply point to matters of grave concern. The reader should be aware, too, that the summaries I am about to give are too abbreviated to be more than a bare flagging of the cases for our attention.

Randy Weaver was a former Green Beret and reputed white supremacist who surrendered on August 31, 1992, after being under siege for eleven days at his cabin on a mountaintop amidst the Selkirk Mountains in northern Idaho. The siege opened with two days of gunfire. His 13 year old son Samuel was killed; and on August 22 Weaver’s wife Vicki was shot dead while holding their 10-month-old baby. On the government side, deputy U.S. marshal William F. Degan died in the shootout.

The Weavers had been under surveillance for more than a year and a half after Weaver failed to show up for trial in February 1991 on federal gun charges. Questions have been raised about whether the original charges grew out of entrapment, possibly over a mere technical violation of gun regulations.

In the case of David Koresh and the Branch Davidians in Waco, agents of the federal bureau of Alcohol, Tobacco and Firearms practiced a military-type assault at Fort Hood before their initial raid on the cult’s compound on the morning of February 28, 1993. They had obtained search and arrest warrants based on affidavits that the cult had amassed an arsenal of weapons, including guns that had been illegally converted to automatics. (The cultists believed that the end of the world was near, and had armed themselves to defend against attacks from others in the world’s final days.)

A vicious fire-fight, with perhaps as many as 10,000 rounds fired by the two sides, lasted for 45 minutes, leaving four agents dead, approximately fifteen wounded, and an undetermined number of the cult members dead or wounded. A second fire-fight occurred that evening.

Thereafter, a long siege set in, with continuing negotiations. The government pounded the compound with loud noise, including such things as a recording of the screams of rabbits being killed. Then on April 19, armored vehicles were sent in to rip large chunks out of the buildings and inject tear gas. There is dispute about how the ensuing fire started – whether by the cultists themselves or by a tear gas canister knocking over a lantern, but it is believed that 85 members of the cult died in the inferno, including 25 children.

Each of these episodes deserves a major national investigation. It would seem that an aggressive military-style assault should take the place of more moderate police methods only in the most imperative cases, involving serious crimes and imminent danger or a total absence of alternatives. Otherwise, there is an unspeakable loss of proportion.

Both the Weaver family and the Branch Davidians were attacked with enormous ferocity and the lives even of innocents treated as of negligible value. We are justified in asking: Was this devaluation caused by the fact that each group held beliefs that were far outside the mainstream of American society (in a politically incorrect direction)?

The Iran-Contra Persecution. In the aftermath of Iran-Contra, special prosecutor Lawrence Walsh enjoyed an unlimited budget, spending in the neighborhood of $30 million, charging many of the more outstanding men in the United States government – including the likes even of Caspar Weinberger – with dubious crimes, but securing virtually no convictions.

The whole episode reflected an intolerant criminalization of policy differences, such as the Radical Reconstruction Congress manufactured against President Andrew Johnson after the Civil War. It reflected, too, the hysteria that follows a pointing-with-alarm media crusade. It is not too much to say that such a persecution, by one political party and branch of government against another, constitutes arguably the single most serious threat to our Constitutional system.

‘Wetlands” terrorism. Under the impact of extremist environmentalist ideology, sweeping laws have been passed protecting the “wetlands,” which are defined with breath-taking generality. These laws deprive property owners of the value of their land and subject them to frightening penalties for actions that are often both innocent and inconsequential.

‘Superfund’ liability. Under the Superfund Act, all property purchasers have been put at risk for enormous potential liability for pollution they didn’t create and that indeed may have occurred years before their purchase. This has interjected an element of fear into many thousands of transactions and makes investment in land of any kind fraught with danger. It applies even to small land purchasers, but imagine what insuperable dangers are placed, say, in the way of one oil company’s buying a refinery from another, or two such companies merging together.

The Americans with Disabilities Act. The ambiguities in the ADA are so extensive that it is impossible to calculate how many tens of billions of dollars of expense, including legal costs in defense of irascible claims, will be incurred by American business and other institutions as our entire society is revamped to accommodate the disabled, not only in physical adaptations but also in employment.

The ADA is a prime example of a loss of proportion in which “the mountain is made to come to Mohammed.” It is also a leading example of how the private sector is coming to be made the vehicle for the delivery of vast social services, with the costs not being counted as a “tax.” It also indicates how litigation is being used as a prime device of social engineering.

RICO. The Racketeer Influences and Corrupt Organization Act (RICO) was designed as a weapon against organized crime, but is so sweeping in the powers that it gives to prosecutors and to private litigants (under “civil RICO”) that it has rapidly become an instrument of legal terror in settings far removed from organized crime.

Civil forfeitures. During the Civil War, “civil forfeiture” was used to seize the property of men who fought for the South. It wasn’t heard from again until recently, when it was made part of the weapons under RICO. It is now incorporated into over 100 federal laws.

Property is seized if it is thought to have been involved in a crime – and there is no requirement that the government have proved the commission of the crime. An article by Richard Miniter in the February 22, 1993, issue of Insight reports a 1991 estimate that “80 percent of people whose property is seized by the government are never charged with a crime.”

Even where a crime is eventually charged, the government keeps the property despite a jury’s acquitting the owner of the crime. “The property owner has no immediate recourse to contest the seizure before a judge,” Miniter says, “and no right to a public defender. Usually the owner must pay a ‘cost bond’ – typically ten percent of the estimated value of the property – within 30 days to preserve his right to sue for recovery.” Then, after the bond is paid, “the owner may wait months or years for a hearing.”

If the property was owned by someone other than the person suspected of a crime, an “innocent owners” provision applies, but “proving innocence can be an ordeal.” An owner who succeeds in getting his property back has to pay the government storage charges, and may find the property in terrible condition, since the government “has no obligation to maintain or safeguard the property in its custody.” Even a lender who takes a mortgage against property is subject to losing it as collateral, since the “doctrine of relation back” gives the government’s seizure claim priority over all rights that accrued after the purported crime began.

One of the great pillars of civilization is the sanctity of property. Its protection is essential to individual liberty and is vital to productive effort within a market economy. In recent years it has become clear that private property no longer enjoys such sanctity. The ADA treats all private property as a communal asset, and civil forfeiture shows how tenuously even this is held.

‘Sexual harassment.’ There is no doubt that men can sometimes be extremely boorish against women, putting them under offensive sexual pressure in the workplace and elsewhere. “Sexual harassment” can be a serious wrong. And yet, the term itself casts an expansive net that can go well beyond the clearly palpable cases, including within its scope much of the ordinary give-and-take of widely diverse and often-complex human relationships.

Largely under the impetus of ideology, the law attempts to sanitize the behavior of tens of millions of people. The potential for abuse is enormous: even relatively trivial behavior is escalated into something far out of proportion to what is actually is; countless “causes of action” are created to add to the fear of litigation; the behavior may be almost impossible to prove; and the process of judgment is colored by an unspoken presumption of guilt and by everyone’s fear of not being sufficiently militant.

Again, innocent parties, such as an employer who doesn’t respond in arguably just the right way to a charge against a subordinate, can be dragged in and subjected to extreme liability. By turning hundreds of thousands of human contacts into juridical situations, the law introduces fear as a prime ingredient. In yet another way, we cross the divide between a life of freedom free of fear and one poisoned by it.

‘Double jeopardy.’ Any law student can tell you that it has long been held not to constitute “double jeopardy,” in a technical sense, for different levels of government within a federal system, such as we have, to charge a crime for the same act. The technical answer, however, clearly isn’t sufficient.

In the case of the police officers in the Rodney King episode, the officers were acquitted by a jury at the state level after an exhaustive and apparently fair trial. It was ideology and racial politics, even during a Republican administration, that caused them to be brought to trial again on federal charges. This is another evidence of our having lost our sense of justice and of our courts’ and legislative bodies’ inability to cast the law in a form that preserves the essence of individual rights.

Failure of government to perform its essential functions. It may seem odd that at the very time we are seeing a vast over-extension of law and of government, the essential functions of government in a free society are being allowed to go unperformed.

An announcement was made recently in California that a county had run out of money and was letting convicted criminals out of jail. It was announced, too, that criminal charges would no longer be brought for such lesser crimes as shoplifting and prostitution, since the county couldn’t afford to handle them.

During the Los Angeles riots in April 1992, it was many hours before citizens and property were given any protection. Government stood by paralyzed while people were left to their own devices. In the ensuing months, the sale of firearms has gone up many folds as people have come to see it as necessary to protect themselves.

The Willie Horton case, brought to public attention during the 1988 election, shocked the public with the knowledge that a dangerous criminal committed heinous crimes while “on furlough.”

It is predictable that when private citizens find it necessary, as they almost certainly will in such a setting, to resort to vigilantism and lynch law to protect property and preserve order, a hue-and-cry will go up about how vicious the conduct of the mainstream population is. But we will need to remember that the vigilantism will be a symptom, itself a consequence of the collapse of some of the preconditions of civilization.

We see the breakdown of government, too, in our immigration laws. Considerable publicity has been given recently to the fact that all an alien has to do is to arrive in the United States by any means possible, make a brief claim of “political asylum,” and then be released to disappear into the masses of New York City or else- where. Unconscionably, our generation is surrendering our nation’s self-identity. It may already be too late; the tipping-point may already have been passed at which it becomes impossible to reverse the forces, ideological and political, that are leading us toward national fragmentation and even dissolution.

And Yet, an Affirmation

I could continue endlessly with examples of legal, institutional and cultural decay, all justifying a sense of despair and, indeed, of deep alienation.

These are matters of profound concern to all conscientious Americans. But, as indicated earlier, there is an opposite dimension. In the context of the Left’s ideological attacks on precisely the more sound parts of American life and on the American mainstream itself, it is imperative to come to the defense of the society, to affirm its essential values, institutions and history. We cannot afford to acquiesce in unjustified charges of “viciousness” against the mainstream that form a part of the Left’s corrosive writing of American history.

A great many Americans, including even conservatives, desiring to be generous and open-minded, and having neither the time nor the inclination to explore the facts or to think through the issues, now accept the Left’s alienated version of major events in American history. Accordingly, our national consciousness is being reformulated, partly by default.

Here is a brief recapitulation of the events I have explored in recent issues of Conservative Review:

The three-century dispossession of the American Indian. For more than three centuries, the American population that started on the east coast expanded steadily westward. For the first two of these centuries, treaties were worked out with the Indian tribes, agreeing in effect that “you’ll be on one side of the river (or mountains) and we’ll be on the other.” In each case, the flood of immigrants continued to come to the New World from Europe, creating population pressures that recurrently forced new arrangements that involved the Indians’ movement further west. Finally, President Jefferson decided on a policy of moving all Indians west of the Mississippi, with the promise that the land there would be theirs forever. Within fifty years, though, the discovery of gold in California, Colorado and later the Black Hills began a new wave of westward expansion, and the necessity of a series of temporary, and ever-narrowing, accommodations presented itself again. At the end of the process, the Native Americans wound up on the reservations that we know today.

It has become commonplace for Americans to acquiesce in a damning of this three-century process as one of unconscionable conquest, marked by broken treaties and bad faith on the part of the whites. But in my analysis of it, I didn’t find such a view sensible. A highly advanced civilization was coming to occupy a continent that its millions saw primarily as empty, peopled sparsely by hunter-warriors who for the most part had not passed through the Neolithic revolution that led to civilization some ten thousand years ago.

To a family like the Lincolns, who moved from Kentucky to Indiana and then to Illinois, the search for an improved life seemed natural - and the Indians, very rightly it seems to me, were hardly given a thought. The American government tried periodically to stop encroachment on Indian lands, but eventually found it necessary, as any democratic government would, to provide protection to its own people.

It is naively sentimental and unthinking to condemn the process by which North America came to be settled with farms and cities. Those who value our civilization should stop apologizing for it, and leave the excoriation to those who are steeped in alienation.

The World War II relocation of the Japanese-Americans. A second issue I examined in an earlier article was the evacuation of approximately 120,000 persons of Japanese origin from the west coast during World War II. Again, it has become commonplace to say that the United States was guilty of a vicious disregard of the rights of others – even during America’s “finest hour” of fighting Hitler and Hirohito. That that hour should be tainted is the delight of the alienated Left.

My article showed that the average American’s sharing in the condemnation is largely based on ignorance of what really happened and why. The American government did not choose internment, even though that might have been justified in light of the extreme military emergency and the revelations contained in the deciphered Japanese diplomatic dispatches, which revealed on-going Japanese efforts to recruit Japanese-Americans as agents. Instead, the Roosevelt administration chose relocation, resettling the Japanese-Americans first in camps in the interior and then, by the thousands, into homes and jobs throughout the Midwest and eastern United States. Thousands of Japanese-American students of college age attended, during the war, some 350 American universities to continue their education. The only Japanese-Americans who were held against their will were a few thousand people who in various ways proved loyal to Japan, and were placed in segregation in the camp at Tule Lake. There, they marched to the tune of the Japanese national anthem and celebrated the anniversary of the attack on Pearl Harbor.

The relocation centers were austere in appearance, but made of the same type of construction as was used for American soldiers overseas. They were self-governed and provided amenities of many kinds. To call them “concentration camps,” as has been popular within the Left, thus suggesting a similarity to Hitler’s death camps, is a libel of the vilest sort.

As a conservative, my propensity is not to defend the Roosevelt administration. But my study of the issue showed me that America does not deserve the facile condemnation that has been heaped upon it on that issue.

Kent State. For several years after the National Guardsmen opened fire at Kent State University on May 4, 1970, killing four “students,” the Left has held commemorations honoring the supposed martyrs.

In my study of the issue, however, I found that the National Guard showed remarkable restraint in the face of unbelievable provocations. The “students” were far from innocent. Rioting and burning, promoted by shadowy revolutionaries who sought to (and did) shut down hundreds of campuses, had gone on for days. When the troops (young men, for the most part, the same age as the rioters) were called in, they were pelted with shards of concrete, bricks, rocks, golf balls and boards with nails driven through them – even with bags of feces.

The precise spark that caused a troop of the guardsmen to turn, finally, and fire is much in dispute; but the unpremeditated nature of the shooting is attested to by the fact that the guardsmen didn’t even take time to pull off their gas masks to be able to aim precisely.

Under these circumstances, to use “Kent State” as a symbol of the perfidy of mainstream America is yet another vicious libel laid on us by the Left. Americans who are not disaffected from our institutions and culture have no reason to acquiesce in it.

Other issues. I plan to continue my study of such issues, and recently have been researching the history of the “Hollywood Backlist” that banned Communist screenwriters, not terribly successfully, during the late 1940s and ‘50s. There are several other issues that are touchstones of the Left’s alienated critique of American history. Each is to be judged on its facts; but unless they succumb to the Zeitgeist, conservatives and other loyal Americans will approach none of them with a predisposition toward finding America befouled. They will affirm America where it deserves to be affirmed.

What Are We to Think of the Duality Between Affirmation and Anger?

Several observations are in order about the need simultaneously to affirm American society and to feel distress over its many sign of decay:

1. It is important that we see the connection between an atmosphere of fatuous ideology and a growing decadence of morals and personal standards, on the one hand, and a rise of legal terrorism, with its accompanying breakdown of traditional protections of the individual, on the other.

It is ideology, and the opportunism that both feeds off of it and contributes to it, that carries the law into every nook and cranny of human relations and then destroys the sense of proportion, elevating some things into absolutes and devaluing others.

And it is the breakdown of standards (such as we see in the drug culture) that calls into being, in the first place, the need for ever more aggressive police action, setting the stage for a Frankenstein’s monster far removed from normal police protection.

The causes of legal terror run deep, and can be found in the cultural-intellectual crisis of our time.

2. The expanding legal terror poses a profound challenge to the legal and Constitutional philosophy so long favored for conservatism by former Attorney General Meese, Chief Justice Rehnquist and Robert Bork. Preaching “judicial restraint,” they argue that judges should allow government free rein at all its levels. They don’t see the judiciary as a vital bastion protecting the rights of individuals, including the rights of individuals, including the right to own property, against the state. They have long-since turned explicitly against the pre-New Deal classical liberalism that insisted on limited and decentralized government.

This amounts to a devastating forfeiture by an inadequate conservative jurisprudence. After years of Republican presidents appointing hundreds of federal judges, there should be viable Constitutional challenges that can be made against the over-breadth of “wetlands” legislation, against an expansive RICO, against years of persecution by special prosecutors, and against all other over-extensions and warping of the law.

3. The existence of abuses that can induce deep alienation and despair in conservatives points, perhaps better than anything else, to the need for conservatism to regain the reformist impetus with which it began two centuries ago.

It is here that the two tendencies – of affirmation and anger – can be brought together into a coherent whole.

We should look back into history and recall that the classical liberal philosophy of individual freedom under the Rule of Law and within a society of limited government and strong personal responsibility was originally a fighting reformist creed. One of the more fateful facts about modern history is that it lost this essence a third of the way through the nineteenth century when it went on the defensive after the rise of the world Left.

For almost a century and three-quarters, the supporters of mainstream America have hesitated to call attention to abuses, for fear of seeming to align themselves with the Left’s unrelenting attack. This has robbed their philosophy and politics of vitality, of an appeal to the idealism of young people and others, and of issues that it ought to have embraced as its own and addressed in its own way.

The American public senses that there are many abuses within today’s society. The Perot phenomenon shows that people are reaching out to find leadership. They are tired of cant, and want real solutions. For a number of reasons, Perot isn’t the man to provide them that. But a reinvigorated conservative intellectual and political movement could – and should – do it.

It remains to be seen whether mainstream America, the giant “silent majority,” has the energy and capacity for intellectual self-awareness that such a movement will require. The Left is only part of the problem in modern society; it would play a relatively small role if it were not for the complacency and intellectual inertial of the majority. Perhaps as things become worse the giant will stir.

Dwight D. Murphey is an associate editor of Conservative Review. He is a professor at Wichita State University and the author of the recent book Liberalism in Contemporary America (Council for Social and Economic Studies, 6861 Elm Street, Suite 4H, McLean, VA 22101, $25).