NRPLUS MEMBER ARTICLE T he cliché is that extraordinary claims require extraordinary evidence. The maxim animating The Age of Entitlement, Christopher Caldwell’s much-talked-about book covering “America since the Sixties,” is something more like: “Extraordinary claims should be floated on every other page, often implied rather than stated outright, and backed up only minimally.” The tome is astonishing in scope, yet underwhelming on most of the particulars.
It covers countless topics, from feminism to war, but treats the Civil Rights Act of 1964 as the unexpected force behind everything that has gone wrong with America — a development that replaced the U.S. Constitution with a new, unwritten constitution oriented around minority interests that hardly anyone realized they’d signed up for. Caldwell is correct that there were significant constitutional problems with several major civil-rights milestones, but he whiffs when it comes to identifying them, and his arguments that the 1964 law is to blame for other changes in American life are mostly weak. Still less does he offer any plausible alternative path that the country might have taken or might take today.
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Caldwell is hardly the first person to broach these topics. For decades now there has been a weighty debate over the constitutional justifications for Brown v. Board of Education, the 1954 Supreme Court case that desegregated public schools, and the Civil Rights Act of a decade later, which desegregated many private businesses. Interestingly, liberal legal commentators tend to be the ones who most readily admit that these developments were not faithful to the original meaning of the Constitution — after all, if these sacrosanct pillars of American law required “judicial activism” and a “living constitution,” those in turn must be good things. Conservatives, meanwhile, have struggled to reconcile their support for Brown and basic civil-rights laws with their dedication to constitutional originalism.
The 14th Amendment, adopted in 1868, prohibits states from denying American citizens the equal protection of the laws or the privileges and immunities of citizenship. To modern ears, that might sound like states aren’t allowed to discriminate on the basis of race at all. But there’s a very strong case that this is not how the amendment was understood at the time it was drafted.
As Jack Balkin has written, legislators and courts back then embraced a “tripartite” scheme for classifying rights: civil, political, and social. The 14th Amendment protected civil rights, which then referred to such things as the rights to own property and make contracts; it did not protect political or social rights. We know it didn’t protect political rights because if it had, we wouldn’t have needed the 15th Amendment to give blacks the right to vote. And on the matter of school segregation specifically, likely best classified as a social matter in this breakdown (though the boundaries of that category were never exactly settled), there’s a strong hint of what the 14th Amendment meant in the fact that the Congress that put it forward itself operated a segregated school district in Washington, D.C.: It would have been bizarre for Congress to ban school segregation in the states while running segregated schools itself. Further, as Earl M. Maltz has noted, segregated schools were prevalent in the swing-voting lower North, and the politicians who drafted the 14th Amendment certainly were not aiming to disrupt those voters’ arrangements. Nor were those states themselves, when they ratified the amendment.
To be fair, there are arguments on the other side of this, too. Most prominently, Michael McConnell has pointed out that many members of Congress who supported the 14th Amendment also supported using it to ban school segregation in the 1875 Civil Rights Act. (They failed to get that provision in.) But on balance, the reading of the 14th Amendment advanced in Brown seems dismayingly out of step with the original meaning of that amendment.
What about the 1964 act? That, too, is hard to justify under the 14th Amendment, which authorizes Congress to police the laws that states may make or enforce, not the practices of private businesses. Instead, Congress relied on the interstate-commerce clause, whose scope had drastically expanded since the Founding, such that just about any type of business activity could be considered interstate commerce. (One notorious case from the New Deal era, Wickard v. Filburn, allowed Congress to regulate wheat that farmers grew to feed their own animals, because their reliance on this food rather than food purchased elsewhere had an effect on interstate commerce.) That’s how Congress, soon with the Supreme Court’s blessing, managed to regulate the customer-service policies of businesses throughout the country. For someone who professes fealty to the original meaning of the Constitution, this is a hard pill to swallow; the federal government is one of enumerated powers, and no such power, as originally understood, authorizes the 1964 act.
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You may notice I’ve gone through all this without reference to Caldwell’s book. That’s because these arguments, though entirely standard in the academic debate on this topic, are almost completely different from the ones Caldwell focuses on while casting doubt on Brown and the 1964 act. And the arguments he presents instead are far inferior.
On Brown, he leans heavily on the thoughts of liberals who had misgivings about the decision in the years immediately afterward, especially a 1959 lecture from Harvard’s Herbert Wechsler. Wechsler was a legal superstar in his day, and his thoughts on Brown have continued to attract some attention over the years, but they are frankly unimpressive. Let’s take a deeper look at them.
Caldwell writes that Wechsler “showed in devastating detail that Brown would have been impossible under any faithful reading of what the drafters of the Fourteenth Amendment had meant by equality.” But in fact Wechsler’s treatment of that issue was cursory and dismissive. The problem, he wrote, was not
that history does not confirm that an agreed purpose of the fourteenth amendment was to forbid separate schools or that there is important evidence that many thought the contrary; the words are general and leave room for expanding content as time passes and conditions change.
Wechsler then proceeded to pooh-pooh the obvious justification for Brown, that schools were segregated for the purpose of stigmatizing and separating black students. Some of his points here were interesting, though they seem to come from an alternative universe where it could pass the laugh test that school segregation under Jim Crow existed for some other purpose:
Does [this argument] not involve an inquiry into the motive of the legislature, which is generally foreclosed to the courts? Is it alternatively defensible to make the measure of validity of legislation the way it is interpreted by those who are affected by it? In the context of a charge that segregation with equal facilities is a denial of equality, is there not a point in Plessy in the statement that if “enforced separation stamps the colored race with a badge of inferiority,” it is solely because its members choose “to put that construction upon it”? Does enforced separation of the sexes discriminate against females merely because it may be the females who resent it and it is imposed by judgments predominantly male? Is a prohibition of miscegenation a discrimination against the colored member of the couple who would like to marry?
Then Wechsler claimed that the real core of the issue was freedom of association — a thought that Caldwell seems to endorse. However, as Wechsler spelled out, neither segregation nor desegregation enabled freedom of association in public-school classrooms; one forbade the association of whites with blacks while the other required it. One might think this illustrates how ridiculous it is to see the segregation policies of state-run schools through the lens of free association at all. If you take this approach seriously, the conclusion is that public schools in themselves violate the public’s rights unless parents are given full school choice. (I happen to like that conclusion, but it’s wildly out of step with American history.) Wechsler, though, thought the dilemma forced Brown supporters to come up with an argument that the forced association of blacks and whites was more in keeping with free association than is the banning of interracial association, and he said he couldn’t think of one. That is not too compelling.
Admittedly, the freedom-of-association argument is considerably less frivolous in the context of the 1964 Civil Rights Act — where it also plays the leading role in Caldwell’s narrative — because that law requires private business owners to associate with customers they don’t want around. But Caldwell badly overstates this problem with the law, claiming that it constituted a partial repeal of the First Amendment. In discussing later developments in gay rights, he even asserts that freedom of association is “the master freedom . . . the freedom without which political freedom cannot be effectively exercised.” This is a major part of his overarching theme that civil rights in essence replaced the U.S. Constitution with a new, unwritten one.
As it turns out, though, “freedom of association” is not in the Constitution to begin with. It exists only to the extent that it’s implied by the other rights the First Amendment protects — those to free speech, free exercise of religion, peaceable assembly, and petitioning the government for redress of grievances. Certainly the government can’t stop people from, say, forming or joining religious or political organizations, but how exactly does anything in the Constitution affirmatively protect a right to operate a business that’s open to the public while refusing to serve a certain type of customer out of rank bigotry?
There needs to be an argument here, ideally one that grapples with the fact that no “freedom of association” prevented states from mandating segregation at private businesses, and with the fact that at least some specific types of private businesses (inns, theaters, “common carriers” such as railroads) have had a common-law obligation to serve all comers since the U.S. was founded. Libertarians such as Richard Epstein have attempted this in the past, though often from a “law and economics” perspective that isn’t exactly originalist. But Age of Entitlement provides little in the way of a case for the existence of a right of businesses to discriminate.
There is a stray assertion, late in the book, that at least pinpoints a specific First Amendment provision as the source of the freedom Caldwell thinks has been lost: The 1964 act “had withdrawn the right to freedom of association long implicit in the freedom of assembly.” But in what sense are the day-to-day operations of a business a peaceable “assembly” of the kind referred to in the Constitution?
Caldwell also discusses Robert Bork’s opposition to the 1964 act, most prominently articulated in an article for The New Republic, and says Bork noted “its potential to endanger First Amendment freedoms.” But in that piece Bork explicitly declined to characterize his free-association arguments as constitutional ones:
We are treated to debate whether it is more or less cynical to pass the law under the commerce power or the Fourteenth Amendment, and whether the Supreme Court is more likely to hold it Constitutional one way or the other. Heretical though it may sound to the constitutional sages, neither the Constitution nor the Supreme Court qualifies as a first principle. The discussion we ought to hear is of the cost in freedom that must be paid for such legislation, the morality of enforcing morals through law, and the likely consequences for law enforcement of trying to do so.
That is, free association was something readers should think about besides the constitutional issues with the legislation, which involved the question of which enumerated power allowed Congress to act in this area.
Caldwell also makes assorted references to property rights as a basis for a right to discriminate. But these passages, too, are missing an argument connecting them to the text of the Constitution, which says only that the government may not deprive Americans of property without due process of law.
Congress exceeding its enumerated powers is bad, but it’s not the same as trampling on a fundamental “master right” to establish a “new constitution.”
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Nevertheless, what are we to do with the fact that these cornerstones of the victory against Jim Crow lacked a firm grounding in the Constitution? I have a dog in this fight, as I published a long article about it a decade ago. I argued that these departures from proper policymaking procedures were justified by the severity of the wrong they sought to address. Their use in the context of Jim Crow does not justify unconstitutional lawmaking elsewhere, any more than the Civil War’s success in ending slavery justifies killing half a million Americans to change other laws. Countless activists have sought to pin their newfangled causes to the coattails of the civil-rights movement, but none of them have a real claim to such deference, because none of them are being treated like blacks in the Jim Crow South. If they want change, they can win it through the normal process of convincing the public, passing laws, and amending the Constitution when necessary.
Caldwell says that things just can’t work that way: Once you give up the Civil Rights Act of 1964, you’ve given up everything else too, from affirmative action, to political correctness, to gay rights, to mass immigration, to frivolous lawsuits alleging discrimination, to a definition of “racism” that just keeps getting broader and broader. He writes that while such changes were not “in” the Civil Rights Act, they “could easily be induced from it.” Affirmative action “was deduced judicially from the curtailments on freedom of association that the Civil Rights Act had put in place.” The national debt comes from desegregation too, somehow. Even Roe v. Wade was “a function of the new constitutional possibilities in the Civil Rights Act.” Caldwell mocks conservatives who argue that the colorblind ideals of the civil-rights movement were later “hijacked”: This is just what “civil rights” always meant.
Now, it is certainly true that the act was a massive undertaking, that it exposed businesses to unprecedented levels of federal oversight and private lawsuits to boot, that it provided a hook for judges and future Congresses who sought to warp its contours, and that, as noted, later activists of many stripes would use it as a model. If the act had not passed or had taken a radically different form, these developments would have gone differently as well. But the more strident Caldwell’s assertions become and the farther they drift from these direct and undeniable consequences, they less plausible they are.
I don’t buy for a second, for instance, that basic civil rights logically require a cavalcade of other developments. It’s entirely logically consistent to open public schools and businesses to people of all races while refusing to accede to these other things, especially those that themselves involve discrimination on the basis of race. Caldwell’s own polling numbers suggest that’s what the public wanted. Conservatives fought for it. We just didn’t win, at least not always.
And speaking of the gap between public opinion and public policy, Caldwell treats it as evidence that the Civil Rights Act was destined, by its own terms, to take on a life of its own and unleash everything else. But the U.S. is not a direct democracy; it is a representative democracy with an overweening judicial branch and an overly powerful administrative state, problems that certainly grew after the 1960s, though they’d started growing well before, especially during the New Deal. I’ve already noted how the Supreme Court turned the commerce clause into the do-whatever-you-want clause; around the same time, Congress dramatically beefed up the administrative state and also undermined freedom of association via labor laws that allowed a majority of a workplace to force the entirety of the workplace to financially support a union, which is to say a political organization.
There’s a limit to what elites can get away with, as seen in the end of busing, the advent of state-level affirmative-action bans, and a Supreme Court majority that could soon threaten affirmative action more fundamentally — which deserve more space in Caldwell’s book. But in the modern American system, elites can substitute their own judgments for the public’s to a large extent. Indeed, if Congress hadn’t passed civil rights, it’s entirely conceivable the Supreme Court would have done it instead. In this sense, the Civil Rights Act was not the but-for condition behind everything else; the priorities and power of American elites were.
After the act, civil rights indeed were not “hijacked.” But different supporters had different opinions on what to do next, those who wanted to take things much further had the most power, and the more moderate popular majority got angry enough to push back only selectively. That’s lamentable, but it’s not really a new constitution. And while various acts of congressional overreach and judicial activism did change the Constitution over the course of the 20th century, civil rights for blacks were only one example of this far broader trend — and they were the most easily justifiable example, at that.
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And what was the alternative to the 1964 act anyway? Caldwell spends a lot more time talking about the fallout from civil rights than about the conditions that necessitated them, but even he can’t deny the horrifying nature of Jim Crow. And frustratingly, in keeping with his overall tendency to inject his opinions into his narration rather than actually lay out arguments, he never quite says that it shouldn’t have been passed, or what should have been done instead. I suppose ideally the U.S. would have explicitly laid out a constitutional amendment giving Congress the power to regulate the racism of private businesses, an amendment that could have contained limitations as well, though who knows how long Jim Crow would have lasted before enough support for that built up.
Another notion he floats without quite endorsing it is the repeal of civil-rights laws now, on the idea they’ve served their purpose. He writes that they were once seen as a “transitional measure” and laments that Republicans, decades later, “could not acknowledge (or even see) that the only way back to the free country of their ideals was through the repeal of the civil rights laws.” This isn’t a novel thought; getting rid of nondiscrimination law was also put forth in Dinesh D’Souza’s controversial 1995 book The End of Racism, and it’s similar to Epstein’s thinking as well. Yet there is good evidence that some businesses do continue to discriminate against blacks, and the suggestion is dead on arrival anyhow.
Like it or not, the most that principled conservatives and libertarians can hope for from their politicians and judges is the approach I laid out in 2010, and the one the Right has mostly stuck to: Concede the legitimacy of Brown and basic nondiscrimination policies, and fight like hell against affirmative action and the rest of it.