The
following is adapted from a talk delivered on January 28, 2020, at
Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional
Studies and Citizenship in Washington, D.C., as part of the AWC
Family Foundation lecture series.
American
society today is divided by party and by ideology in a way it has
perhaps not been since the Civil War. I have just published a book
that, among other things, suggests why this is. It is called The
Age of Entitlement: America Since the Sixties. It runs from the
assassination of John F. Kennedy to the election of Donald J. Trump.
You can get a good idea of the drift of the narrative from its
chapter titles: 1963, Race, Sex, War, Debt, Diversity, Winners, and
Losers.
I
can end part of the suspense right now—Democrats are the winners.
Their party won the 1960s—they gained money, power, and
prestige. The GOP is the party of the people who lost those things.
One
of the strands of this story involves the Vietnam War. The
antiquated way the Army was mustered in the 1960s wound up creating
a class system. What I’m referring to here is the so-called
student deferment. In the old days, university-level education was
rare. At the start of the First World War, only one in 30 American
men was in a college or university, so student deferments were not
culturally significant. By the time of Vietnam, almost half of
American men were in a college or university, and student deferment
remained in effect until well into the war. So if you were rich
enough to study art history, you went to Woodstock and made love. If
you worked in a garage, you went to Da Nang and made war. This
produced a class division that many of the college-educated mistook
for a moral division, particularly once we lost the war. The rich
saw themselves as having avoided service in Vietnam not because they
were more privileged or—heaven forbid—less brave, but because
they were more decent.
Another
strand of the story involves women. Today, there are two cultures of
American womanhood—the culture of married women and the culture of
single women. If you poll them on political issues, they tend to
differ diametrically. It was feminism that produced this rupture.
For women during the Kennedy administration, by contrast, there was
one culture of femininity, and it united women from cradle to grave:
Ninety percent of married women and 87 percent of unmarried women
believed there was such a thing as “women’s intuition.” Only
16 percent of married women and only 15 percent of unmarried women
thought it was excusable in some circumstances to have an
extramarital affair. Ninety-nine percent of women, when asked the
ideal age for marriage, said it was sometime before age 27. None
answered “never.”
But
it is a third strand of the story, running all the way down to our
day, that is most important for explaining our partisan
polarization. It concerns how the civil rights laws of the 1960s,
and particularly the Civil Rights Act of 1964, divided the country.
They did so by giving birth to what was, in effect, a second
constitution, which would eventually cause Americans to peel off
into two different and incompatible constitutional cultures. This
became obvious only over time. It happened so slowly that many
people did not notice.
Because
conventional wisdom today holds that the Civil Rights Act brought
the country together, my book’s suggestion that it pulled the
country apart has been met with outrage. The outrage has been
especially pronounced among those who have not read the book. So for
their benefit I should make crystal clear that my book is not
a defense of segregation or Jim Crow, and that when I criticize the
long-term effects of the civil rights laws of the 1960s, I do not
criticize the principle of equality in general, or the movement for
black equality in particular.
What
I am talking about are the emergency mechanisms that, in the name of
ending segregation, were established under the Civil Rights Act of
1964. These gave Washington the authority to override what Americans
had traditionally thought of as their ordinary democratic
institutions. It was widely assumed that the emergency mechanisms
would be temporary and narrowly focused. But they soon escaped
democratic control altogether, and they have now become the most
powerful part of our governing system.
How
Civil Rights Legislation Worked
There
were two noteworthy things about the civil rights legislation of
1964 and 1965.
The first was its
unprecedented concentration of power. It gave Washington tools it
had never before had in peacetime. It created new crimes, outlawing
discrimination in almost every walk of public and private life. It
revoked—or repealed—the prevailing understanding of freedom of
association as protected by the First Amendment. It established
agencies to hunt down these new crimes—an expanded Civil Rights
Commission, an Equal Employment Opportunity Commission (EEOC), and
various offices of civil rights in the different cabinet agencies.
It gave government new prerogatives, such as laying out hiring
practices for all companies with more than 15 employees, filing
lawsuits, conducting investigations, and ordering redress. Above
all, it exposed every corner of American social, economic, and
political life to direction from bureaucrats and judges.
To
put it bluntly, the effect of these civil rights laws was to take a
lot of decisions that had been made in the democratic parts of
American government and relocate them to the bureaucracy or the
judiciary. Only with that kind of arsenal, Lyndon Johnson and the
drafters thought, would it be possible to root out insidious racism.
The
second noteworthy thing about the civil rights legislation of the
1960s is that it was kind of a fudge. It sat uneasily not only with
the First Amendment, but with the Constitution as a whole. The
Voting Rights Act of 1965, passed largely to give teeth to the 14th
Amendment’s guarantee of equal rights for all citizens, did so by
creating different levels of rights for citizens of southern states
like Alabama and citizens of northern states like Michigan when it
came to election laws.
The goal of the civil rights
laws was to bring the sham democracies of the American South into
conformity with the Constitution. But nobody’s democracy is
perfect, and it turned out to be much harder than anticipated to
distinguish between democracy in the South and democracy elsewhere
in the country. If the spirit of the law was to humiliate Southern
bigots, the letter of the law put the entire country—all its
institutions—under the threat of lawsuits and prosecutions for
discrimination.
Still, no one was too worried
about that. It is clear in retrospect that Americans outside the
South understood segregation as a regional problem. As far as we can
tell from polls, 70-90 percent of Americans outside the South
thought that blacks in their part of the country were treated just
fine, the same as anyone else. In practice, non-Southerners did not
expect the new laws to be turned back on themselves.
The
Broadening of Civil Rights
The problem is that when the
work of the civil rights legislation was done—when de jure
segregation was stopped—these new powers were not suspended or
scaled back or reassessed. On the contrary, they intensified. The
ability to set racial quotas for public schools was not in the
original Civil Rights Act, but offices of civil rights started doing
it, and there was no one strong enough to resist. Busing of
schoolchildren had not been in the original plan, either, but once
schools started to fall short of targets established by the
bureaucracy, judges ordered it.
Affirmative
action was a vague notion in the Civil Rights Act. But by the time
of the Supreme Court’s 1978 Bakke decision, it was an
outright system of racial preference for non-whites. In that case,
the plaintiff, Alan Bakke, who had been a U.S. Marine captain in
Vietnam, saw his application for medical school rejected, even
though his test scores were in the 96th, 94th, 97th, and 72nd
percentiles. Minority applicants, meanwhile, were admitted with, on
average, scores in the 34th, 30th, 37th, and 18th percentiles. And
although the Court decided that Bakke himself deserved admission, it
did not do away with the affirmative action programs that kept him
out. In fact, it institutionalized them, mandating
“diversity”—a new concept at the time—as the law of the
land.
Meanwhile
other groups, many of them not even envisioned in the original
legislation, got the hang of using civil rights law. Immigrant
advocates, for instance: Americans never voted for bilingual
education, but when the Supreme Court upheld the idea in 1974, rule
writers in the offices of civil rights simply established it, and it
exists to this day. Women, too: the EEOC battled Sears, Roebuck
& Co. from 1973 to 1986 with every weapon at its disposal,
trying to prove it guilty of sexism—ultimately failing to prove
even a single instance of it.
Finally,
civil rights came to dominate—and even overrule—legislation that
had nothing to do with it. The most traumatic example of this was
the Immigration Reform and Control Act of 1986. This legislation was
supposed to be the grand compromise on which our modern immigration
policy would be built. On the one hand, about three million illegal
immigrants who had mostly come north from Mexico would be given
citizenship. On the other hand, draconian laws would ensure that the
amnesty would not be an incentive to future migrants, and that
illegal immigration would never get out of control again. So there
were harsh “employer sanctions” for anyone who hired a
non-citizen. But once the law passed, what happened? Illegal
immigrants got their amnesty. But the penalties on illegal hiring
turned out to be fake—because, to simplify just a bit, asking an
employee who “looks Mexican” where he was born or about his
citizenship status was held to be a violation of his civil rights.
Civil rights law had made it impossible for Americans to get what
they’d voted for through their representatives, leading to decades
of political strife over immigration policy that continues to this
day.
A
more recent manifestation of the broadening of civil rights laws is
the “Dear Colleague” letter sent by the Obama Education
Department’s Office for Civil Rights in 2011, which sought to
dictate sexual harassment policy to every college and university in
the country. Another is the overturning by judges of a temporary ban
on entry from certain countries linked to terrorism in the first
months of the Trump administration in 2017.
These
policies, qua policies, have their defenders and their
detractors. The important thing for our purposes is how they were
established and enforced. More and more areas of American life have
been withdrawn from voters’ democratic control and delivered up to
the bureaucratic and judicial emergency mechanisms of civil rights
law. Civil rights law has become a second constitution, with powers
that can be used to override the Constitution of 1787.
The
New Constitution
In
explaining the constitutional order that we see today, I’d like to
focus on just two of its characteristics.
First,
it has a moral element, almost a metaphysical element, that
is usually more typical of theocracies than of secular republics. As
we’ve discussed, civil rights law gave bureaucrats and judges
emergency powers to override the normal constitutional order,
bypassing democracy. But the key question is: Under what conditions
is the government authorized to activate these emergency powers? It
is a question that has been much studied by political thinkers in
Europe. Usually when European governments of the past bypassed their
constitutions by declaring emergencies, it was on the grounds of a
military threat or a threat to public order. But in America, as our
way of governing has evolved since 1964, emergencies are declared on
a moral basis: people are suffering; their newly discovered rights
are being denied. America can’t wait anymore for the ordinary
democratic process to take its course.
A
moral ground for invoking emergencies sounds more humane than a
military one. It is not. That is because, in order to justify its
special powers, the government must create a class of officially
designated malefactors. With the Civil Rights Act of 1964, the
justification of this strong medicine was that there was a
collection of Southern politicians who were so wily and devious, and
a collection of Southern sheriffs so ruthless and depraved, that one
could not, and was not morally obliged to, fight fair with them.
That
pattern has perpetuated itself, even as the focus of civil rights
has moved to American institutions less obviously objectionable than
segregation. Every intervention in the name of rights requires the
identification of a malefactor. So very early on in the gay marriage
debate, those who believed in traditional marriage were likened to
segregationists or to those who had opposed interracial marriage.
Joe
Biden recently said: “Let’s be clear: Transgender equality is
the civil rights issue of our time. There is no room for compromise
when it comes to basic human rights.” Now, most Americans,
probably including Joe Biden, know very little about transgenderism.
But this is an assertion that Americans are not going to be
permitted to advance their knowledge by discussing the issue in
public or to work out their differences at the ballot box. As civil
rights laws have been extended by analogy into other areas of
American life, the imputation of moral non-personhood has been aimed
at a growing number of people who have committed no sin more
grievous than believing the same things they did two years ago, and
therefore standing in the way of the progressive juggernaut.
The
second characteristic of the new civil rights constitution is what
we can call intersectionality. This is a sociological
development. As long as civil rights law was limited to protecting
the rights of Southern blacks, it was a stable system. It had the
logic of history behind it, which both justified and focused its
application. But if other groups could be given the privilege of
advancing their causes by bureaucratic fiat and judicial decree,
there was the possibility of a gradual building up of vast new
coalitions, maybe even electoral majorities. This was made possible
because almost anyone who was not a white heterosexual male could
benefit from civil rights law in some way.
Seventy
years ago, India produced the first modern minority-rights based
constitution with a long, enumerated list of so-called “scheduled
tribes and castes.” Eventually, inter-group horse trading took up
so much of the country’s attention that there emerged a grumbling
group of “everyone else,” of “ordinary Indians.” These
account for many of the people behind the present prime minister,
Narendra Modi. Indians who like Modi say he’s the candidate of
average citizens. Those who don’t like him, as most of the
international media do not, call him a “Hindu nationalist.”
We
have a version of the same thing happening in America. By the
mid-1980s, the “intersectional” coalition of civil rights
activists started using the term “people of color” to describe
itself. Now, logically, if there really is such a thing as “people
of color,” and if they are demanding a larger share of society’s
rewards, they are ipso facto demanding that “non–people
of color” get a smaller share. In the same way that the Indian
constitution called forth the idea of a generic “Hindu,” the new
civil rights constitution created a group of “non–people of
color.” It made white people a political reality in the United
States in a way they had never been.
Now
we can apply this insight to parties. So overpowering is the
hegemony of the civil rights constitution of 1964 over the
Constitution of 1787, that the country naturally sorts itself into a
party of those who have benefitted by it and a party of those who
have been harmed by it.
A
Party of Bigots and a Party of Totalitarians
Let’s
say you’re a progressive. In fact, let’s say you are a
progressive gay man in a gay marriage, with two adopted children.
The civil rights version of the country is everything to you. Your
whole way of life depends on it. How can you back a party or a
politician who even wavers on it? Quite likely, your whole moral
idea of yourself depends on it, too. You may have marched in gay
pride parades carrying signs reading “Stop the Hate,” and you
believe that people who opposed the campaign that made possible your
way of life, your marriage, and your children, can only have done so
for terrible reasons. You are on the side of the glorious
marchers of Birmingham, and they are on the side of Bull
Connor. To you, the other party is a party of bigots.
But
say you’re a conservative person who goes to church, and your
seven-year-old son is being taught about “gender fluidity” in
first grade. There is no avenue for you to complain about this.
You’ll be called a bigot at the very least. In fact, although
you’re not a lawyer, you have a vague sense that you might get
fired from your job, or fined, or that something else bad will
happen. You also feel that this business has something to do with
gay rights. “Sorry,” you ask, “when did I vote for this?”
You begin to suspect that taking your voice away from you and taking
your vote away from you is the main goal of these rights movements.
To you, the other party is a party of totalitarians.
And that’s our current party
system: the bigots versus the totalitarians.
If either of these
constitutions were totally devoid of merit, we wouldn’t have a
problem. We could be confident that the wiser of the two would win
out in the end. But each of our two constitutions contains, for its
adherents, a great deal worth defending to the bitter end. And
unfortunately, each constitution must increasingly defend itself
against the other.
When gay marriage was being
advanced over the past 20 years, one of the common sayings of
activists was: “The sky didn’t fall.” People would say:
“Look, we’ve had gay marriage in Massachusetts for three weeks,
and I’ve got news for you! The sky didn’t fall!” They were
right in the short term. But I think they forgot how delicate a
system a democratic constitutional republic is, how difficult it is
to get the formula right, and how hard it is to see when a
government begins—slowly, very slowly—to veer off course in a
way that can take decades to become evident.
Then one day we discover that,
although we still deny the sky is falling, we do so with a lot less
confidence.
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