“Civil Rights in American History”

I received an email yesterday that I thought I would share with everyone since it contained a very interesting 10 question quiz. Take the quiz, no obligation and consider signing up for some of Hillsdale FREE classes. Learn the truth about American History not the revisionist crap being taught in Schools and most colleges today. – Mike

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How much do you know about the meaning and history of civil rights in America?

If you’re like most Americans—especially our youngest citizens—you probably only learned about a few important stories spread across the long history of our great nation.

That’s why we’re launching our latest free online course, “Civil Rights in American History,” next month.

This new course covers our Founders’ understanding of equality, natural rights, and civil rights; the quest for justice up to and through the Civil War, during Reconstruction, and in the 20th century; and the danger posed to civil rights today by identity politics.

So Mr. or MS. _______, how much do you know about this critical subject?

You can test your knowledge today by taking a brief quiz we’ve put together from the course lectures. You can use the link below to take this short (and fun) quiz.

https://lp.hillsdale.edu/2020-civil-rights-quiz/

A Sensible and Compassionate Anti-COVID Strategy

Some TRUTH about COVID, instead of political BS.

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October 2020 • Volume 49, Number 10

A Sensible and Compassionate Anti-COVID Strategy

Jay Bhattacharya, Stanford University
My goal today is, first, to present the facts about how deadly COVID-19 actually is; second, to present the facts about who is at risk from COVID; third, to present some facts about how deadly the widespread lockdowns have been; and fourth, to recommend a shift in public policy. . . . continue reading

American Sports Are Letting Down America

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July/August 2020 • Volume 49, Number 7/8

American Sports Are Letting Down America

Jason Whitlock Outkick.com

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Jason Whitlock is a sports columnist for Outkick.com, a TV and radio host, and a podcaster. A graduate of Ball State University, where he was a football letterman, he worked as a sportswriter at The Kansas City Star from 1994 to 2010. He has also worked for ESPN, AOL Sports, and Fox Sports. In 2007, he became the first sportswriter to win the Scripps Howard National Journalism Award for Commentary. He founded ESPN’s “The Undefeated” website and helped create and host “Speak for Yourself” on FOX Sports 1

The following is adapted from a Hillsdale College online lecture delivered in Nashville, Tennessee, on August 19, 2020.

Nearly 30 years ago, in a 1993 Nike commercial, professional basketball legend Charles Barkley fired the first shot at the “role model” concept popularized by Columbia University sociologist Robert K. Merton in the aftermath of the 1960s counterculture movement. “I am not a role model,” Barkley proclaimed in the half-minute spot. “I’m not paid to be a role model. I’m paid to wreak havoc on the basketball court. Parents should be role models. Just because I dunk a basketball doesn’t mean I should raise your kids.”

Barkley’s words landed with a force every bit the equal of former NFL quarterback Colin Kaepernick’s National Anthem knee 23 years later. Former Vice President Dan Quayle defended Barkley, while Barkley’s fellow NBA superstar Karl Malone criticized him in Sports Illustrated. Leading news magazines, including Time and Newsweek, published articles exploring the controversy. Newspaper columnists from coast to coast—on and off the sports pages—also weighed in. The topic still sparks debate today…

READ MORE

In Honor of Our Fallen Heroes

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This Memorial Day, we remember those who sacrificed their lives for our freedom. Our thoughts and prayers are with all of those who are grieving. May we, as Abraham Lincoln said at Gettysburg, “highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

We’ve put together a short video tribute honoring our fallen heroes. Watch it by clicking the button below.

Watch the Video Tribute

Thoughts on the Current Crisis

Imprimis

Imprimis is the free monthly speech digest of Hillsdale College and is dedicated to educating citizens and promoting civil and religious liberty by covering cultural, economic, political, and educational issues. The content of Imprimis is drawn from speeches delivered at Hillsdale College events. First published in 1972, Imprimis is one of the most widely circulated opinion publications in the nation with over five million subscribers.

 • Volume 49, Number 3/4

Larry P. Arnn – President, Hillsdale College


 

Larry P. Arnn is the twelfth president of Hillsdale College. He received his B.A. from Arkansas State University and his M.A. and Ph.D. in government from the Claremont Graduate School. From 1977 to 1980, he also studied at the London School of Economics and at Worcester College, Oxford University, where he served as director of research for Martin Gilbert, the official biographer of Winston Churchill. From 1985 until his appointment as president of Hillsdale College in 2000, he was president of the Claremont Institute for the Study of Statesmanship and Political Philosophy. He is the author of Liberty and Learning: The Evolution of American EducationThe Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution; and Churchill’s Trial: Winston Churchill and the Salvation of Free Government.


Sample Content:

We must of course listen to experts, just as Churchill did, but expertise cannot as a simple fact of principle tell us finally what is right to do.

This is why it is offensive when any member of our government, expert or not, addresses us chiefly as carriers of a pathogen to be kept indefinitely in our homes. Keeping us in our homes may be necessary in extreme circumstances, and it may be necessary in these circumstances, but officials should be extremely reluctant about it. At a recent White House briefing on the virus, one of the medical experts began scolding Americans, saying that based on the experts’ models, the virus curve was not bending enough because people were not following the rules of distancing to a sufficient extent. The President interrupted to praise Americans for the active steps they were taking for the country, including not just those staying at home but those millions who were performing necessary tasks. (The next day, that same expert told Americans that they should not go to the grocery store, forgetting I guess that we pathogen-carriers need to eat.)

READ: Imprimis_March_WEB

Socialism, Free Enterprise, and the Common Good

With so called “Democratic Socialism” on the rise in America (Bernie Sanders may have dropped out but his legion of followers live on) I thought this article from 15 years ago a thoughtful reminder. – Mike

 

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 • Volume 36, Number 5

Rev. Robert A Sirico

Rev. Robert A. Sirico is co-founder and president of the Acton Institute for the Study of Religion and Liberty. He received his Master of Divinity degree from the Catholic University of America, following undergraduate study at the University of Southern California and the University of London. He has written for a variety of journals, including the New York Times, the Wall Street Journal, Forbes, the London Financial Times, the Washington Times, the Detroit News and National Review. A member of the Mont Pelerin Society, the American Academy of Religion, and the Philadelphia Society, he is also currently pastor of St. Mary Catholic Church in Kalamazoo, Michigan.


The following is adapted from a speech delivered at Hillsdale College on October 27, 2006, at the first annual Free Market Forum, sponsored by the College’s Center for the Study of Monetary Systems and Free Enterprise.


In chapter 21 of St. Matthew’s Gospel, Jesus proposes a moral dilemma in the form of a parable: A man asks his two sons to go to work for him in his vineyard. The first son declines, but later ends up going. The second son tells his father he will go, but never does. “Who,” Jesus asks, “did the will of his father?” Although I am loath to argue that Jesus’s point in this parable was an economic one, we may nonetheless derive from it a moral lesson with which to evaluate economic systems in terms of achieving the common good.

Modern history presents us with two divergent models of economic arrangement: socialism and capitalism. One of these appears preoccupied with the common good and social betterment, the other with profits and production. But let us keep the parable in mind as we take a brief tour of economic history.

The idea of socialism, of course, dates back to the ancient world, but here I will focus on its modern incarnation. And if we look to socialism’s modern beginnings, we find it optimistic and well-intentioned. In contrast to contemporary varieties that tend to bemoan prosperity, romanticize poverty, and promote the idea that civil rights are of secondary concern, at least some of the early socialists sought the fullest possible flourishing of humanity—which is to say, the common good.

A half-century before Karl Marx published the Communist Manifesto, there was Gracchus Babeuf’s Plebeian Manifesto (later revised by Sylvain Marechal and renamed the Manifesto of the Equals). Babeuf was an early communist who lived from 1760 to 1797 and wrote during the revolutionary period in France. Although he was jailed and eventually executed, his ideas would later have an enormous impact. And his explicit political goal had nothing to do with impeding prosperity. To the contrary, he wrote:

The French Revolution was nothing but a precursor of another revolution, one that will be bigger, more solemn, and which will be the last… We reach for something more sublime and more just: the common good or the community of goods! No more individual property in land: the land belongs to no one. We demand, we want, the common enjoyment of the fruits of the land: the fruits belong to all.

We see in Babeuf’s writings two themes that would remain dominant in socialist theory until the twentieth century: an aspiration to prosperity through ownership by all and an equation of the common good with the commonality of goods. Indeed, Marx took more from Babeuf than Marx himself would ever acknowledge.

In our own time, we think of socialists as opposing capitalist excess, disparaging the mass availability of goods and services, and seeking to restrict the freedom to produce and enjoy wealth. Consider, for instance, the wrath that modern socialists feel towards fast food, large discount stores, and specialty financial services for the poor. They accuse the mass consumer market of institutionalizing false needs, commodifying the commons, glorifying the banal, homogenizing culture—all at the expense of the environment and of equality of condition, the highest socialist goal. Improving the standard of living in society is far down the list of modern socialist priorities.

But to repeat, it was not always so. Early socialists believed that socialism would bring about an advance of civilization and an increase in wealth. Babeuf, for example, predicted that socialism would “[have] us eat four good meals a day, [dress] us most elegantly, and also [provide] those of us who are fathers of families with charming houses worth a thousand louis each.” In short, socialism would distribute prosperity across the entire population. A particularly poetic rendering of this vision was offered by none other than Oscar Wilde:

Under Socialism…there will be no people living in fetid dens and fetid rags, and bringing up unhealthy, hunger-pinched children in the midst of impossible and absolutely repulsive surroundings…Each member of the society will share in the general prosperity and happiness of the society, and if a frost comes no one will practically be anything the worse…

The core of the old socialist hope was a mass prosperity that would free all people from the burden of laboring for others and place them in a position to pursue higher ends, such as art and philosophy, in a conflict-free society. But there was a practical problem: The Marxist prediction of a revolution that would bring about this good society rested on the assumption that the condition of the working classes would grow ever worse under capitalism. But by the early twentieth century it was clear that this assumption was completely wrong. Indeed, the reverse was occurring: As wealth grew through capitalist means, the standard of living of all was improving.

Lifting All Boats

Historians now realize that even in the early years of the Industrial Revolution, workers were becoming better off. Prices were falling, incomes rising, health and sanitation improving, diets becoming more varied, and working conditions constantly improving. The new wealth generated by capitalism dramatically lengthened life spans and decreased child mortality rates. The new jobs being created in industry paid more than most people could make in agriculture. Housing conditions improved. The new heroes of society came from the middle class as business owners and industrialists displaced the nobility and gentry in the cultural hierarchy.

Much has been made about the rise of child labor and too little about the fact that, for the first time, there was remunerative work available for people of all ages. As economist W. H. Hutt has shown, work in the factories for young people was far less grueling than it had been on the farm, which is one reason parents favored the factory. As for working hours, it is documented that when factories would reduce hours, the employees would leave to go to work for factories that made it possible for them to work longer hours and earn additional wages. The main effect of legislation that limited working hours for minors was to drive employment to smaller workshops that could more easily evade the law.

In the midst of all this change, many people seemed only to observe an increase in the number of the poor. In a paradoxical way, this too was a sign of social progress, since so many of these unfortunate people might have been dead in past ages. But the deaths of the past were unseen and forgotten, whereas current poverty was omnipresent. Meanwhile, as economic development expanded in the nineteenth century, there was a dramatic growth of a middle class that now had access to consumer goods once available only to kings—not to mention plenty of new goods being created by the engine of capitalism.

These economic advances continued throughout the period of the rise of socialist ideology. The poor didn’t get poorer because the rich were getting richer (a familiar socialist refrain even today) as the socialists had predicted. Instead, the underlying reality was that capitalism had created the first societies in history in which living standards were rising in all sectors of society. In a sense, free market capitalism was coming closest to realizing what Marx himself had imagined: “the all round development of individuals” in which “the productive forces will also have increased” and “the springs of social wealth will flow more freely.”

There was one Marxist in England who seemed to understand what was happening. Eduard Bernstein, who lived from 1850 to 1932, is hardly known today. His writings are not studied, except by specialists. But he was the leading Marxist after Marx and Engels. Engels considered him their successor, and even asked him to finish editing Marx’s fourth volume of Capital.

In the 1890s, Bernstein began to observe the positive effects of capitalism on living standards. “What characterizes the modern mode of production above all,” he wrote, “is the great increase in the productive power of labour. The result is a no less increase of production—the production of masses of commodities.” This empirical fact struck at the very heart of the Marxist case. Bernstein also observed that the numbers of businesses and of people who were well-off were rising along with incomes. As he put it, “The increase of social wealth is not accompanied by a diminishing number of capitalist magnates, but by an increasing number of capitalists of all degrees.” In fact, in the 50 years after the publication of the Communist Manifesto, incomes in England and Germany doubled—precisely the opposite of what Marx had predicted. To quote Bernstein again, from 1899:

If the collapse of modern society depends on the disappearance of the middle ranks between the apex and the base of the social pyramid, if it is dependent upon the absorption of these middle classes by the extremes above and below them, then its realisation is no nearer in England, France, and Germany today than at any earlier time in the nineteenth century.

The basis of Marxist doctrine had been the idea that society under capitalism consisted of two classes—one small and rich, the other vast and increasingly impoverished. The reality, however, was that the numbers of the rich were growing more rapidly than those of the poor, while the vast majority was falling into a category that socialism didn’t anticipate: the middle class. Doctrinaire Marxists were of course furious with Bernstein for noticing these developments. Rosa Luxemburg, for one, wrote a famous essay in 1890 attacking him.

One might assume, then, that Bernstein changed sides—abandoning socialism upon seeing its false premises —and took up instead the classical liberal cause of free enterprise. I’m sorry to report that this is not the case. What Bernstein changed instead were his tactics. He still favored the expropriation of the English capitalists, but now through a different method—not through revolution, but through the use of political mechanisms. And indeed, the political success of socialism during the twentieth century would bring England to the brink of catastrophe more than once.

Ideology vs. Reality

If one becomes aware that the older moral argument for socialism is wrong—that capitalism is actually benefiting people and serving the common good—why would one hold on to the ideology rather than abandon it? Clearly, it is difficult to abandon a lifelong ideology, especially if one considers the only available alternative to be tainted with evil. Thus socialism was, for Bernstein’s generation of socialists and for many that followed, simply an entrenched dogma. It was possible for them to argue the finer points, but not to abandon it.

However understandable this might be, it is not praiseworthy. To hold on to a doctrine that is demonstrably false is to abandon all pretense of objectivity. If someone could demonstrate to me that free markets and private property rights lead to impoverishment, dictatorship, and the violation of human rights on a mass scale, I would like to think that I would have the sense and ability to concede the point and move on. In any case, socialists like Bernstein lacked any such intellectual humility. They clung to their faith—their false religion—as if their lives were at stake. Many continue to do so today.

Most intellectuals in the world are aware of what socialism did to Russia. And yet many still cling to the socialist ideal. The truth about Mao’s reign of terror is no longer a secret. And yet it remains intellectually fashionable to regret the advance of capitalism in China, even as the increasing freedom of the Chinese people to engage in commerce has enhanced their lives. Many Europeans are fully aware of how damaging democratic socialism has been in Germany, France, and Spain. And yet they continue to oppose the liberalization of these economies. Here in the United States, we’ve seen the failure of mass programs of redistribution and the fiscal crises to which they give rise. And yet many continue to defend and promote them.

There have long been cases where grotesque examples of the failure of socialism exist alongside glowing examples of capitalist success, and yet many people will use every excuse to avoid attributing the differences to their economic systems. Even a superficial comparison of North and South Korea, East and West Germany before the Berlin Wall fell, Hong Kong and mainland China before reforms, or Cuba and other countries of Latin America, demonstrates that free economies are superior at promoting the common good. And yet the truth has not sunk in.

The older socialists dreamed of a world in which all classes the world over would share in the fruits of production. Today, we see something like this as Wal-Marts—to cite only the most conspicuous example—spring up daily in town after town worldwide. Within each of these stores is a veritable cornucopia of goods designed to improve human well-being, at prices that make them affordable for all. Here is a company that has created many millions of jobs and brought prosperity to places where it was sorely needed. And who owns Wal-Mart? Shareholders, people of mostly moderate incomes who have invested their savings. We might call them worker-capitalists. Such an institution was beyond the imaginings of the socialists of old.

Although the free enterprise system obviously does not incorporate the old socialists’ idea of a commonality of goods, it does seem to achieve the common good as they conceived it. What then can we say of those who today remain attached to socialism as a political goal? We can say that they do not know or have not understood the economic history of the last 300 years. Or perhaps we can say that they are more attached to socialism as an ideology than they are to the professed goals of its founders. I’m particularly struck by the neo-socialist concern for the well-being of plants, animals, lakes and rivers, rain forests and deserts—particularly when the concern for the environment appears far more intense than the concern for the human family.

The Good of Freedom

When we speak of the common good, we need also to be clear-minded about the political and juridical institutions that are most likely to bring it about. These happen to be the very institutions that socialists have worked so hard to discredit. Let me list them: private property in the means of production; stable money to serve as a means of exchange; the freedom of enterprise that allows people to start businesses; the free association of workers that permits people to choose where they would like to work and under what conditions; the enforcement of contracts that provides institutional support for the idea that people should keep their promises; and a vibrant trade within and among nations to permit the fullest possible flowering of the division of labor. These institutions must be supported by a cultural infrastructure that respects private property, regards the human person as possessing an inherent dignity, and confers its first loyalty to transcendent authority over civil authority. This is the basis of freedom, without which the common good is unreachable. Thus Pope John Paul II wrote of economic initiative:

It is a right which is important not only for the individual but also for the common good. Experience shows us that the denial of this right, or its limitation in the name of an alleged “equality” of everyone in society, diminishes, or in practice absolutely destroys, the spirit of initiative, that is to say the creative subjectivity of the citizen.

To summarize: We are all entitled to call ourselves socialist, if by the term we mean that we are devoted to the early socialist goal of the well-being of all members of society. Reason and experience make clear that the means to achieve this is not through central planning by the state, but through political and economic freedom. Thomas Aquinas had an axiom: bonum est diffusivum sui. “The good pours itself out.” The good of freedom has indeed poured itself out to the benefit of humanity.

In conclusion, I ask you, “Who did the will of the Father?”

The Roots of Our Partisan Divide

Whether you are Liberal or Conservative, Democrat, Republican, Libertarian or Constitutionalist I think we can all agree America currently has a great partisan divide. Mr. Caldwell does a good job at pointing out some obvious reasons why. – Mike

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February 2020 • Volume 49, Number 2

The Roots of Our Partisan Divide


Christopher Caldwell

Christopher Caldwell is a senior fellow at the Claremont Institute, a contributing editor at the Claremont Review of Books, and a contributing opinion writer for The New York Times. A graduate of Harvard College, he has been a senior editor at the Weekly Standard and a columnist for the Financial Times. He is the author of Reflections on the Revolution in Europe: Immigration, Islam, and the West and The Age of Entitlement: America Since the Sixties.


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.