Magazine March 9, 2020, Issue

Civil-Rights Law and the Rival Constitution

On the steps of the Lincoln Memorial during a civil-rights march on Washington, D.C., August 28, 1963 (Library of Congress Prints and Photographs Division)
The Age of Entitlement: America Since the Sixties, by Christopher Caldwell (Simon & Schuster, 352 pp., $28)

There are many reasons the Right, in spite of the Republican Party’s electoral successes, steadily loses ground to the Left with each passing decade. The Left controls all the elite institutions that bestow praise and lay blame in America. It has a clarity of purpose, a resolve, and a ruthlessness that are generally lacking on the right. Most important though, it is the Left’s moral framework that is authoritative. Their pieties rule and are enforced by conservatives and liberals alike.

Nearly everyone in America either believes in or defers to the Left’s hierarchical politics of victimization. According to the country’s official mythology, in the beginning, only straight white men were free. Over time, marginalized members of the rainbow coalition gained more rights. American history, in this retelling, is progressive — yet tragic. Disparities in life outcomes between men and women, blacks and whites, gays and straights prove that sexism, racism, and homophobia remain systemic.

In the spirit of John Rawls, America is to be judged by how its oppressed identity groups fare. Progressivism leads the charge in demanding more rights for more people, while conservatism is, at best, reduced to playing second fiddle in ministering to women and minorities. A rising tide lifts all boats — especially boats of color! As President Trump never tires of tweeting, the black and Hispanic unemployment rate is at an all-time low.

Non-accommodationist conservative arguments — anchored in the centrality of freedom, family, God, and country — lack a soil in which to take root. They are bound to fail — and fail they do, as the leftward drift of the country and of conservatism itself confirms. Robert Lewis Dabney’s biting words have proven prescient: “American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition.”

The Right will not stem its losses and reclaim the country until it upends the Left’s narrative. America needs a moral revolution and a different conceptual framework to think about its history. Hence the importance of Christopher Caldwell’s marvelously well-written and deliciously impious new counter-history of America since the Sixties, The Age of Entitlement.

Caldwell, a senior fellow at the Claremont Institute, paves the way for such a transvaluation of values by calling into question the regime’s most sacred cow: civil rights. In his retelling, the civil-rights movement that justly destroyed Jim Crow did not bring equality to America. In a sad irony, it instead re-created the problem it promised to resolve, albeit in a modified form. America today once again has a system of government-backed racial preferences, except that blacks (and other recognized identity groups) are now its beneficiaries, while whites occupy “the bottom rung of an official hierarchy of races.”

It should be noted from the outset (not that it will matter to his detractors) that Caldwell is blind neither to the injustices of the past nor to the good that came from civil rights. He calls Jim Crow “heinous” and “unfair.” He praises the civil-rights movement’s “extraordinary achievement” and its “collateral blessings.” More generally, his is a critique of the Sixties devoid of nostalgia for the Fifties. He describes post-war America as an overly regimented martial era with bland architecture and a “transactional, aggressive, and indelicate” ethos.

Still, he sees in the civil-rights movement a destructive force that fundamentally altered the United States for the worse. The locus of Caldwell’s analysis is the Civil Rights Act of 1964. This landmark piece of legislation did not merely ban government discrimination, it also empowered bureaucrats and judges to eradicate private discrimination. In so doing, it nullified one of the central pillars of the Founders’ liberal order: the freedom of association — which Caldwell calls “the master freedom,” without which “political freedom cannot be effectively exercised.”

Thereafter, the Constitution of 1788 would still exist on paper, but America would now be governed by a rival de facto constitution whose animating principles were to eradicate discrimination and secure the dignity of the oppressed (both defined in the broadest possible terms). This new Constitution is anchored in bureaucratic orders and overreaching judicial decisions unmoored from the language and intent of the Civil Rights Act. It “lacks the traditional kind of legitimacy” of the older Constitution, but it “commands the near-unanimous endorsement of judicial elites and civic educators and the passionate allegiance of those who received it as a liberation.”

The number of liberated beneficiaries, the ensuing years revealed, would only grow. Blacks were followed by women, Hispanics, homosexuals, immigrants, and the disabled in leveraging the new formidable powers of the anti-discrimination state on their behalf, with transsexuals soon set to join them. As Joe Biden recently explained to the nation: “Transgender equality is the civil rights issue of our time.” And as Caldwell astutely observes: “Civil rights law became the template for much of American policy making after the 1960s, including on matters far removed from race.”

Under the new civil-rights regime, the demands of the oppressed would also grow. First, the schools had to be desegregated. Then they had to be forcibly integrated through busing. First, positions in the workplace had to be opened to women. Then the workplace had to be feminized. First, gay marriage had to be recognized by the government. Then every last baker, florist, and photographer in the country had to approve of it too.

Caldwell homes in on the three developments most damaging to the ancien régime of limited constitutional government: affirmative action, disparate-impact analysis, and political correctness. Affirmative action gave America “something it had never had at the federal level, something the overwhelming majority of its citizens would never have approved: an explicit system of racial preference.” The legal doctrine of disparate impact redefined discrimination to include non-discriminatory practices that affect identity groups differently. “It was an opening to arbitrary power,” Caldwell notes. “And once arbitrary power is conferred, it matters little what it was conferred for.” As for political correctness — the “name for the cultural effect of the basic enforcement powers of civil rights law” — it represented “the most comprehensive ideological capture of institutional power in the history of the United States.”

No one had signed up for this — including the well-intentioned Americans who opposed Jim Crow and supported civil rights. But the civil-rights state took on a life of its own. Its vast discretionary powers were unmoored from popular sentiment and electoral politics. Civil rights, in Caldwell’s final and bleakest assessment, “does not temper popular sovereignty, it replaces it.” And so the diversity agenda “advanced when its proponents won elections and when they lost them.”

This illiberal and inegalitarian political system benefits some Americans at the expense of others. The winners gravitate to the Democratic Party, the losers to the Republican Party. The parties now represent “two different constitutions, two different eras of history, even two different technological platforms. And increasingly, two different racial groups.” Polarization might be too quaint a term to describe such divisions.

Caldwell’s book ends somewhat abruptly in 2015. Trump is never mentioned by name, although Caldwell alludes to him a handful of times. He suggests that the 2016 election should be interpreted as a rebellion against the oppressive civil-rights regime. But even the rebels who remain loyal to the original Constitution cannot “acknowledge (or even see) that the only way back to the free country of their ideals [is] through the repeal of the civil rights laws.”

This may be the boldest line in a book that is already sure to vex many sensibilities. According to Caldwell, the promise of civil rights may be equality, but its effect is and must be discrimination. He dismisses as a comforting myth the view, widely held by conservatives, that the “good” colorblind and nonviolent civil-rights movement was later hijacked by radicals. For Caldwell, there is only one civil-rights movement, and its logic necessarily points to affirmative action, censorship, and even violence. The race riots of the 1960s, in his view, “were the civil rights movement — not the whole of it, certainly, but an important element of it.”

The conclusion to which his book points will be deeply unsettling to all sympathetic readers. If Caldwell is right that civil-rights laws cannot be moderated and that there is no way forward except through repeal, then the prospects for constitutional government are grim. It is inconceivable, for the foreseeable future at least, that the Republican Party will push for repeal — and even less conceivable that the Civil Rights Act will get repealed. Civil war or secession appear more likely.

But why couldn’t a Republican Party emboldened by Caldwell’s book set its sights instead on reshaping the judiciary and the bureaucracy to eliminate affirmative action and disparate-impact analysis, while holding the line against efforts to criminalize so-called hate speech? The Civil Rights Act of 1964, after all, is color-blind. The floor debates in Congress at the time of its passage make clear that it was not intended to produce quotas. And racial preferences of all kinds remain unpopular in America. While Caldwell shows that the colorblind road was not taken, he does not prove that it cannot ever be taken.

Caldwell may perhaps be right that such an endeavor would fail, but it would be imprudent to dismiss it from the outset — especially since it has not been pursued with determination. The conservative movement has devoted considerably more resources to promoting school choice and defending the unborn, for instance, than it has to fighting the metastasizing civil-rights agenda. It is by no means clear that a concerted effort to eliminate racial preferences must fail (though one should not be blind to the considerable obstacles that lie ahead, chief among which are many Americans’ unwillingness to countenance disparate group outcomes and the elites’ religious devotion to diversity, as evidenced, for example, by Californian universities’ refusal to comply with Proposition 209).

The Age of Entitlement is much more than a history of civil rights. Caldwell offers provocative and illuminating analyses of immigration and demographic change, the failures of Reaganism, the rise of Big Tech and the digitization of life, woke capitalism, and politicized philanthropy. Almost every page contains an arresting observation, a telling anecdote, or an interesting fact. This is revisionist conservative history at its best.

This article appears as “The Rival Constitution” in the March 9, 2020, print edition of National Review.

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David Azerrad — Mr. Azerrad is an assistant professor at Hillsdale College’s Van Andel Graduate School of Government in Washington, D.C.

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