America’s two constitutions — since the ‘60s, competing visions of a more perfect union

Posted by DanielS on Monday, 27 January 2020 10:47.

Christopher Caldwell: America’s two constitutions — since the ‘60s, competing visions of a more perfect union

Christopher Caldwell, author of the book ‘The Age of Entitlement,’ says Democrats and Republicans have two different conceptions of what the country is about. Fox News, 27 Jan 2020:

Not long after he left the White House, Bill Clinton gave what is still the best description of the fault lines that run through American politics. “If you look back on the ’60s and on balance you think there was more good than harm, you’re probably a Democrat,” he said. “If you think there was more harm than good, you’re probably a Republican.”

What could he have meant by that?

Though Americans are reluctant to admit it, the legacy of the 1960s that most divides the country has its roots in the civil rights legislation passed in the immediate aftermath of John F. Kennedy’s assassination. It was enacted in a rush of grief, anger and overconfidence — the same overconfidence that had driven Kennedy to propose landing a man on the moon and would drive Lyndon Johnson to wage war on Vietnam. Shored up and extended by various court rulings and executive orders, the legislation became the core of the most effective campaign of social transformation in American history.

This campaign was effective both for its typically American idealism and for its typically American ruthlessness. It authorized Washington to shape state elections, withhold school funds, scrutinize the hiring practices of private businesses and sue them. It placed Offices of Civil Rights in the major cabinet agencies, and these offices were soon issuing legally binding guidelines, quotas and targets. Above all, it exposed every corner of American social, business and political life to direction from judges.

Americans assumed that solving the unique and extraordinary problem of segregation would require handing Washington powers never before granted in peacetime. In this they were correct.

But they were also confident that the use of these powers would be limited in time (to a few years at most), in place (to the South), and in purpose (to eliminating segregation). In this they misjudged, with fateful consequence for the country’s political system.

Civil rights law may have started off as a purpose-built tool to thwart the insidious legalism of Southern segregation and the violence of Southern sheriffs. It would end up a wide-ranging reinvention of government.

After the work of the civil rights movement in ending segregation was done, the civil rights model of executive orders, regulation-writing and court-ordered redress remained.

This was the so-called “rights revolution”: an entire new system of constantly churning political reform, bringing tremendous gains to certain Americans and — something that is mentioned less often — losses to many who had not necessarily been the beneficiaries of the injustices that civil rights was meant to correct.

The United States had not only acquired two codes of rules (two constitutions), as people rallied to one code or the other, they also sorted themselves into two sets of citizens (two countries). To each side, the other’s constitution might as well have been written in invisible ink.

Civil rights became an all-purpose constitutional shortcut for progressive judges and administrators. Over time it brought social changes in its wake that the leaders of the civil-rights movement had not envisioned and voters had not sanctioned: affirmative action, speech codes on college campuses, a set of bureaucratic procedures that made immigrants almost impossible to deport, gay marriage, transgender bathrooms.

In retrospect, the changes begun in the 1960s, with civil rights at their core, were not just a major new element in the Constitution. They were a rival constitution, with which the pre-1964 one would frequently prove incompatible — and the incompatibility would worsen as the civil-rights regime was built out.

Our present political impasse is the legacy of that clash of systems. Much of what we today call polarization” or “incivility” is something more grave. It is the disagreement over which of the two constitutions shall prevail: the pre-1964 constitution, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks this traditional kind of legitimacy but commands the near-unanimous endorsement of judicial elites and civic educators, and the passionate allegiance of those who received it as a liberation.

As long as the baby boom generation was in its working years, permitting the country to run large debts, Washington could afford to pay for two social orders at the same time. Conservatives could console themselves that they, too, were on the winning side of the revolution. They just stood against its “excesses.” A good civil rights movement led by the martyred Rev. Dr. Martin Luther King Jr. had been hijacked, starting in the 1970s, by a radical version that brought affirmative action and eventually political correctness.

But affirmative action and political correctness were not temporary. Over time they hardened into pillars of the second constitution, shoring it up where it was impotent or illogical, the way the invention of judicial review in Marbury v Madison (1803) shored up the first constitution.

Both affirmative action and political correctness were derived from the basic enforcement powers of civil rights law. And this was the only civil rights on offer. If you didn’t like affirmative action and political correctness, you didn’t like civil rights. By 2013, when Americans began arguing over whether a cake maker could be forced to confect a pro–gay marriage cake, this was clear.

The United States had not only acquired two codes of rules (two constitutions) —as people rallied to one code or the other — they also sorted themselves into two sets of citizens (two countries). To each side, the other’s constitution might as well have been written in invisible ink. Democrats were the party of rights, Republicans of bills. Democrats say, by 84 to 12 percent, that racism is a bigger problem than political correctness. Republicans, by 80 to 17 percent, think political correctness is a bigger problem than racism. The Tea Party uprising of 2009 and 2010, and its political mirror image, the Black Lives Matter uprising of 2015 and 2016, were symbols of that division.

Much happened this century to bring matters to the present boil. Barack Obama, both for his fans and his detractors, was the first president to understand civil rights law in the way described here: as a de facto constitution by which the de jure constitution could be overridden or bypassed. His second inaugural address, an explicitly Constitution-focused argument, invoked “Seneca Falls and Selma and Stonewall” — i.e., women’s rights, civil rights and gay rights — as constitutional milestones.

In this view, the old republic built on battlefield victories had been overthrown by a new one built on rights marches and Supreme Court jurisprudence. When Justice Anthony Kennedy wrote his decision in Obergefell v. Hodges, the 2015 gay marriage case that was in many ways the culmination of this new rights-based constitution, he said as much.

The election of 2016 brought the change into focus. Today two nations look at each other in mutual incomprehension across an impeachment hearing room. It appears we are facing a constitutional problem of the profoundest kind.

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Posted by Eagle clawing weaponized civil rights on Tue, 28 Jan 2020 16:03 | #

Sailer eagle-clawing Caldwell’s effort to gain kosher control(led opposition) of the concept of weaponized civil rights.

Civil Rights Gone Wrong

Steve Sailer for Taki’s Mag, 22 Jan 2020:

A couple of heavyweight conservative thinkers, Charles Murray and Christopher Caldwell, have important new books out this month: Murray’s upcoming Human Diversity: The Biology of Gender, Race, and Class and Caldwell’s The Age of Entitlement: America Since the Sixties.

Caldwell, a distinguished prose stylist, is immensely quotable…except for his new book’s name. I presume The Age of Entitlement is intended as a Voltairean pun on “the Age of Enlightenment” in the manner of his 2009 title Reflections on the Revolution in Europe: Immigration, Islam, and the West and its Burkean riff on Reflections on the Revolution in France. Unfortunately, the moniker The Age of Entitlement gives the vague impression that it’s going to be another snooze from the deep root-canal school of economics about the Social Security trust fund or whatever.

Instead, The Age of Entitlement is an explosive rethinking of history since JFK’s assassination that comes to the reactionary conclusion that the only salvation for American conservatism is to repeal the sainted 1964 Civil Rights Act and restore the constitutional right to freedom of association.

This is a striking judgment for Caldwell, a sober and cultured (I can recall a 1992 conversation with him about how to properly pronounce “Nabokov”) thinker, to arrive at; his career has been largely spent writing for the respectable right, such as the Financial Times, the late Weekly Standard, and The Wall Street Journal.

In contrast, I’ve never felt any regard for the long-gone Jim Crow era, which I’ve always found almost Hindu-like in its grotesque caste rules. I’ve always sympathized with the Southern whites of the 1960s who wanted to put Jim Crow in their rearview mirror and get on with joining modern America. As a Californian who grew up around East Asians and Latinos as well as blacks, 21st-century America’s obsession with seeing everything as black and white, instead of from a more informative multiracial perspective, seems to me like some primitive relic from the Southern past.

“The War on Racism slowly but inevitably became the War of Racism, with whites as the designated racial inferiors.”

Instead, I have always pointed to civil rights going wrong later than 1964, in roughly the 1969–1978 era: the Nixon administration introducing race quotas in 1969; the 1971 Griggs Supreme Court case unveiling the concept of disparate impact discrimination; and the 1978 Bakke decision that, out of the blue, sanctified diversity as America’s new highest value.

This is not to imply that Caldwell wants to go back to Jim Crow, just that, much as Burke did a better job in 1790 of forecasting the course of the French Revolution, he finds that the old Southern critics of the new order foresaw the implications of the civil rights revolution more clearly than did its advocates:

Those who opposed the legislation proved wiser about its consequences than those who sponsored it…. A measure that had been intended to normalize American culture and cure the gothic paranoia of the Southern racial imagination has instead wound up nationalizing Southerners’ obsession with race and violence.

Thus, by 2020:

In the prevailing culture, whiteness was a lower spiritual state, associated with moral unfitness and shame, and it was hereditary. Whiteness was a “bloody heirloom,” as [Ta-Nehisi] Coates wrote….

Caldwell summarizes his thesis:

…what had seemed in 1964 to be merely an ambitious reform revealed itself to have been something more. The changes of the 1960s, with civil rights at their core, were not just a major new element in the Constitution. They were a rival constitution, with which the original one was frequently incompatible…. Much of what we have called “polarization” or “incivility” in recent years is something more grave—it is the disagreement over which of the two constitutions shall prevail: the de jure constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks this traditional kind of legitimacy but commands the near-unanimous endorsements of judicial elites and civic educators and the passionate allegiance of those who received it as a liberation.

The author notes that the two parties now consisted of the winners (Democrats) and losers (Republicans) from the new quasi-constitution imposed in the 1960s:

The Democrats were the party of those who benefited: not just racial minorities but sexual minorities, immigrants, women, government employees, lawyers—and all people sophisticated enough to be in a position to design, run, or analyze new systems. This collection of minorities could, with discipline, be bundled into an electoral majority, but that was not, strictly speaking, necessary…. Sympathetic regulators, judges, and attorneys took up the task of transferring as many prerogatives as possible from the majority to various minorities.

In contrast:

Republicans were the party…of yesterday’s entire political spectrum, of New Deal supporters and New Deal foes….

That’s why in November 2000 I recommended that Republicans not bother with Karl Rove’s plan to try to turn Mexicans into Republicans but instead focus on working-class whites in crucial states like Wisconsin, Michigan, and Pennsylvania—a strategy that proved effective in 2016.

Caldwell continues:

Those who lost the most from the new rights-based politics were white men. The laws of the 1960s may not have been designed explicitly to harm them, but they were gradually altered to help everyone but them, which is the same thing…and because the moral narrative of civil rights required that they be cast as the villains of their country’s history. They fell asleep thinking of themselves as the people who had built this country and woke up to find themselves occupying the bottom rung of an official hierarchy of races.

Caldwell argues that racial preferences and politically correct censorship are not perversions of the Civil Rights Act of 1964, as optimists like myself have long argued, but logical concomitants:

…affirmative action and political correctness…had ceased to be temporary expedients. They were essential parts of this new constitutional structure, meant to shore it up where it was impotent or self-contradictory, in the way that Chief Justice John Marshall’s invention of judicial review in Marbury v. Madison (1801) had been a shoring-up of the first constitution.

To Caldwell, privatized censorship, also known as political correctness, was:

…an institutional innovation. It grew directly out of civil rights law. Just as affirmative action in universities and corporations had privatized the enforcement of integration, the fear of litigation privatized the suppression of disagreement, or even of speculation. The government would not need to punish directly the people who dissented from its doctrines. Boards of directors and boards of trustees, fearing lawsuits, would do that.

Caldwell is caustic about Ronald Reagan’s legacy:

“Political correctness” was a name for the cultural effects of the basic enforcement powers of civil rights laws…. Reagan had won conservatives over to the idea that “business” was the innocent opposite of overweening “government.” So what were conservatives supposed to do now that businesses were the hammer of civil rights enforcement, in the forefront of advancing both affirmative action and political correctness?

It’s hard to deny that Caldwell is onto something here as the most absurd progressive causes reliably triumph in the long run:

Once social issues could be cast as battles over civil rights, Republicans would lose 100 percent of the time. The agenda of “diversity” advanced when its proponents won elections and when they lost them.

He notes:

The wildest utopian suggestions of the “radicals” turned out to be only the smallest down payment on the system-overturning change they would eventually get….

All institutions were now under the purview of the civil rights laws. Aggrieved minorities no one had considered in 1964 had a mysterious set of passwords and procedures that would require government and business to drop everything and respond to their demands.

Thus by 2016 the NBA, of all institutions, went to the mat to force the state of North Carolina to allow a handful of mentally ill grown men to shower in women’s locker rooms.

Most terrifyingly, the conventional wisdom from about the time Mexican monopolist Carlos Slim bailed out The New York Times in 2009 has drifted toward the notion that the world’s 7 billion non-Americans deserve the civil right to move to America, and only un-Americans (who are “not who we are” as Obama would taunt) would dare oppose that.

Caldwell offers cold comfort to anti-racist citizenist conservatives like myself:

Republicans and others who may have been uneasy that the constitutional baby had been thrown out with the segregationist bathwater consoled themselves with a myth: The “good” civil rights movement that the martyred Martin Luther King, Jr., had pursued in the 1960s had, they said, been “hijacked” in the 1970s by a “radical” one of affirmative action, with its quotas and diktats…. None of that was true. Affirmative action and political correctness were the twin pillars of the second constitution. They were what civil rights was.

Moreover, conservatives can’t even count anymore on at least having the majority of citizens on their side when they lose in the courts, agencies, and boardrooms on issues of Diversity – Inclusion – Equity:

A Tomorrow-Belongs-to-Me tone crept into many descriptions of American demographic change. The torch had been passed to a new generation of Americans, who had a message to convey to their elders. The message was: Die.

The War on Racism slowly but inevitably became the War of Racism, with whites as the designated racial inferiors:

It turns out to be a difficult and unnatural thing to replace a system of prejudice with a system of real equality and respect. It’s a lot to ask of people. As Friedrich Nietzsche understood, it is far easier, for both former perpetrators and former victims alike, simply to transvalue the prejudices—so you wind up with the old world turned upside down.

So, what is to be done?

While Caldwell’s book is rather despair-inducing, it’s worth pointing out that even a constitutional crisis might have a judicial solution. The post-1964 regime is based on rather obvious lies and libels. Hence, it’s imaginable that intelligent and resolute Supreme Court justices and their clerks could bravely find a resolution that doesn’t take us back to Jim Crow but instead extends the current protections against racist oppression by the majority to the coming white minority.