Does Gordon Giampietro Need a Defense?

We have reached the point in what passes as our “public discourse” that a warning may now be in order. If you have been an attentive, close reader of The Catholic Thing; if you had been stirred to post a supportive commentary on one of the essays you read, that commentary may be unearthed years later, given a reading quite at odds with its substance, and then converted to the cause of defaming you and impairing your career.

Such is the lot that has fallen to Gordon Giampietro, an accomplished lawyer in Wisconsin, who has been nominated to become a judge in the federal district court. The “controversy” that has formed around Mr. Giampietro could be comprehensible only in a politics that has quite detached itself from any sober reckoning of truth.

The controversy has flared over a commentary that Mr. Giampietro posted in response to a 2014 TCT essay of mine “Hobby Lobby at the Court.” I was reporting on the oral argument that had taken place at the Supreme Court on the issue of religious freedom versus the mandates in Obamacare. The Green family owned the chain of Hobby Lobby stores dealing with crafts, and they offered a generous program of medical insurance for their employees.

But they had religious and moral convictions that barred them from covering abortifacients and contraceptives for their employees, as they were ordered to do under the Affordable Care Act (ACA). That moral stand on the part of the Greens did not, of course, bar their employees from simply paying for their own contraception and abortion. The employees had not lost any right they had under the laws to buy contraceptives and order abortions. What was at issue whether they bore a “right,” of some unexplained source, to have their private employers pay for them.

No one doubted that they could get access to abortions and contraception provided by public funds in programs of “welfare.” But it was quite another matter to impose that public burden on a private employer to bear at his own expense – and impose it on him when he bore the deepest moral and religious objections to those practices.

For anyone growing up as I did in the 1940s and 1950s, the situation would have seemed on the surface quite bizarre. How did the federal government come to have the authority to reach to the provision of medical care in private businesses and make the support for abortion compulsory even for employers who bore religious objections?

The breakthrough for the federal government came with the New Deal and the expansive claim to reach the working conditions of any enterprise that had even the most tenuous connection to “interstate commerce.” But a barrier even more serious was crossed with the Civil Rights Act of 1964. The federal government passed over a constitutional divide when it claimed the authority to bar discriminations on the basis of race in private inns and restaurants.

The law ran well beyond what used to be called “public accommodations,” and soon it would cover virtually any business beyond a hotdog stand. And so, as I pointed out, we’ve reached the point where decisions on hiring and firing in small businesses, and even small private colleges, may be contested in federal courts.

That kind of a change brought the federal government to an involvement ever deeper in ordering the terms of life in private spheres; it marked nothing less than a change in the regime.

Gordon Giampietro

That warning was cast up at the time by Barry Goldwater and many conservatives, who had seen something portentous in the crossing of this divide. I was in my twenties at the time, and I appreciated those concerns, but along with many others I moved to the side of supporting that Civil Rights Act. For the discrimination suffered by black people in the South was still too glaring and demeaning, and it was going to require the intervention of a more distant, central government to break those local tyrannies.

This was precisely the point that drew in Gordon Giampietro and his commentary, and if anything he made an even deeper case for the conditions that justified the intervention of the federal government. He would “go even farther back,” he said, “to the original sin of slavery. Absent slavery, there might have been a vibrant federalism that allowed for differences of opinion to exist side by side until the truth will out.”

In other words, his point was that it was the wrong of slavery, and the corruption of culture wrought in the South, that made it necessary to enlarge powers of a federal government and penetrate these local tyrannies. Without that extension of federal power, he surmised, we would have today States with a far wider freedom to reflect their local ethics and the better angels of their nature.

Surely there is nothing the least implausible in a reading of that kind, a reading that liberals as well as conservatives have come to share. (On that point there can be no more dramatic example than the rediscovery of federalism on the Left in the move to create “sanctuary cities”).

My own surmise is that Mr. Giampietro would share my reading of that Act of 1964: that we may have serious misgivings about the way in which that Act has been misused, but we would live with that Act nevertheless out of respect for the reasons that led us to accept it in the first place.

And yet, for holding this tempered view of the Civil Rights Act of 1964, Giampietro has been called a “racist” by people who have so absorbed the clichés of the day that they have lost any sense of the historical record or the questions of principle that once troubled liberals as well as conservatives on this issue.

“As I would not be a slave,” said Lincoln, “so I would not be master.” Since he rejected slavery in principle, his rejection would be utterly indifferent as to whether he stood on the advantaged or disadvantaged side of the relation. That was the understanding of the managers of the Civil Rights Act when they came up against the charge that the Act would be used to assign racial preferences to black people in cases of hiring in business or admissions to colleges.

If it was wrong in principle to assign benefits and disability solely on the basis of their race, it was quite as wrong to turn away from white applicants for no reason other than their race. Senator Hubert Humphrey was the manager of Civil Rights bill in the Senate, and he insisted that the Act would “not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. . . .In fact, the [bill] would prohibit preferential treatment for any particular group.” As the doubts lingered, Humphrey finally declared that “I will start eating the pages [of the bill] one after another” if the bill could be used to order preferences based on race.

But Mr. Giampietro has been charged now with racism because he sees in the policies of “diversity” the same wrong that the proponents of the Civil Rights Act recognized – and condemned.

What we are seeing then is a generation of political activists, swollen with ideology, and quite incapable of measuring with any clarity or honesty the candidates who are put forth for official posts and thought to be in any way “conservative.” I do not know Mr. Giampietro, but I have realized that he is from a family I had come to know in Washington.

His late father was a sculptor and a beloved teacher of art at the Catholic University of America. I had seen more often his brother, Fr. Anthony.  Anthony was the ninth child of eleven and Gordon was the eleventh, the baby of the family.

He will have a fine life regardless of whether he becomes a federal judge, and only a writer befogged by a party line of untruths, delivered from any code of honest judgment, would think of questioning his decency, or finding in him even a trace of racial prejudice. My surmise is that anyone who comes before him, as a judge, will come before a man, quite detached from ideology, ready to engage his wit and his sympathy, even for the people who mark themselves today as his enemies.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.