Did the Civil Rights Constitution Distort American Politics?

 

Richard Reinsch:
Today we’re talking with Christopher Caldwell, about his new book, The Age of Entitlement: America Since the Sixties. Christopher Caldwell is the contributing editor to the Claremont Review of Books. He’s contributing opinion writer to the New York Times. Many of you will have read him in The Weekly Standard where he was senior editor, and also a columnist for The Financial Times. He’s also the author of a great book on the European situation Reflections on the Revolution in Europe: Immigration, Islam and the West. Christopher Caldwell, welcome to the program.

Christopher Caldwell:
Great to be here, Richard.

Richard Reinsch:
So tell us what is The Age of Entitlement?

Christopher Caldwell:
Well, as my book has it, it’s basically the period that runs between the Kennedy assassination and the Trump election. And I started on the book because I thought it was kind of a self contained period. I think it’s basically the period of the baby boom, in power. And I traced the line along which the country had changed in over those almost five decades, more than five decades. And focused on gender relations, for one thing, on war, for another, on economics as another, but I think it’s probably the line of thinking that has gripped people most has been the constitutional one, because I do present the changes of the 1960s with the Civil Rights Act of 1964 at their heart as being a kind of a new Constitution, which is kind of proved to be in conflict with older constitutional ideas.

Richard Reinsch:
Now, let’s talk about that, because that’s really the heart of your book is what is inaugurated in American constitutional thinking, political thinking, and social thinking from the Civil Rights Act of 1964, you argue we get a new constitution and I think you’re arguing that it’s virtually or becomes irreconcilable with a previous constitution, that is the Constitution of 1789 and the Constitution of the even though the 14th Amendment. Those are two things that can’t be bridged and produce many divisions, new thought patterns and new ways of being political and constitutional in America, talk more about that, if you would.

Christopher Caldwell:
Yes, I think that the Civil Rights Act does grow out of the 14th Amendment. So I think that has less of a problem. There’s less of a problem, bridging it there. But, I should be precise here. When I talk about civil rights, the reader should not get the impression that I’m friendly to segregation, or hostile to the civil rights movement as it existed for the whole of the 20th century up until 1964. In fact, I’m very much in sympathy with the claims to an agitation for equal citizenship that went on up till then, but there were problems in the Civil Rights Act that were not evident at first. We should probably start with what the Civil Rights Act did. The problem that faced Americans with segregation in the South, is that segregation in the South seemed to have been implemented through democratic institutions and it kept being ratified by democratic institutions. And what the Civil Rights Act did was, it pretty much declared the democracies of the South illegitimate or at least, not worthy of self determination. They had to be overseen and surveilled by Washington. And so the Civil Rights Act gave Washington powers that it had never had before in peacetime. First of all, it created a lot of crimes related to discrimination, it banned discrimination in voting, public accommodations, and in public facilities.

Richard Reinsch:
Education.

Christopher Caldwell:
Created a lot of new authority. Yes, education, yes. It created new authority, Civil Rights Commission, the EEOC, it created offices of civil rights in the different cabinet agencies and these were enormously powerful. They had the power to cut off funding to states and municipalities and to lay down hiring practices for companies that had more than 15 people. The EEOC had the right to file lawsuits and conduct investigation. This was really strong medicine. Now, there were a lot of people who worried about how strong a medicine it was at the time, but Americans didn’t worry about it too much, because the problem that civil rights law aimed to fix was so spectacular and so exceptional that it seems to limit the application of those laws. But in fact, as soon as they were passed, they began to deepen. You got new measures that were meant to aid the cause of desegregation, like affirmative action and busing and most important of all, these laws spread to other areas of American life in a way that I think very few Americans had imagined.

So you had the tumble of the 1960s going on, you had women wanting to be promoted up the corporate hierarchy. You had a certain number of immigrants wanting their children to be instructed in their own languages. And when they turned to court and said, “You know what, I don’t want to wait for Congress to vote a law. I want that new system.” When they asked that the court said yes. And so civil rights spread to larger and larger areas of American life and began to crowd out the traditional system.

Richard Reinsch:
Thinking about the Civil Rights Act itself, my understanding is that title four and title seven of that act, explicitly say that a racial balance is not the goal. That is to say, the goal is neutral principles, neutral principles of law, and justice for all Americans regardless of race. Isn’t it despite what happened, part of as I read your book, it’s the sort of unbridgeable tension between these two constitutions and yet, the Civil Rights Act of 1964, one could easily make the case was supposed to be colorblind, and of course as you note, affirmative action comes pretty quickly. We start getting the quotas, we start getting all these other things. I mean, sex is obviously in the Civil Rights Act, that becomes part of the goal, particularly under title nine, very aggressive. You also note something we talk a lot about it on Law & Liberty is the way in which the administrative state was able to act, particularly the Office for Civil Rights notoriously, probably one of the most notorious agencies in the federal bureaucracy for running around the Administrative Procedures Act, and being able to govern just with guidance letters. And that being recognized by the federal judiciary as such. You talk about the origin of busing, nothing was ever passed by Congress to give us mandated busing. It was, in fact, the guidance letter. But as I think about your book, and the Civil Rights Act, what are conservatives to do? Where does this situation leave us?

Christopher Caldwell:
Well, I think it is, as you say, it is extremely deeply entrenched. And it’s not only deeply entrenched, it has been deeply entrenched for a long time. We’re talking about a system that is now 50 or 60 years old. And it’s worked through a number of different modalities. It’s exactly as you say, there was no mention of resorting to quotas in the Civil Rights Act. But that was the way the offices of civil rights measured educational progress, and they were able to mandate the schools change, including through busing in order to demonstrate progress. I think if I had to identify the problem at the heart of it, the reason it could not be stopped from spreading into every single area of American life is that there was a sort of a short circuit in checks and balances. And this is not an area in which I’m an expert, but there’s some beautiful literature in the kind of James Q. Wilson style on the politics of bureaucracy by Boston College professor, political scientist named Shep Melnick.

Richard Reinsch:
Yeah, he’s been on this program to talk about that.

Christopher Caldwell:
Well, he’s an extraordinary analyst of this situation. And what he shows is that there was a kind of a ping ponging back and forth between regulatory agencies and courtrooms, where you could get these programs ratcheting up with incredible speed. They could undergo several escalations in the course of a year, you’d have a classic example that he has studied in detail is bilingual education. There was never a bilingual education law, what you had was a Supreme Court decision that said that there could be a right to bilingual education, and then guidelines written around it and that’s it. And it’s still on the book, actually. So, I think that there are many, many avenues through which this system expanded, but the thing that they all have in common is that they provided a way to short circuit legislative scrutiny. Let’s say that.

Richard Reinsch:
You talk about, as I was reading your book, there’s something that is a perennial topic amongst conservatives as you know. Yuval Levin is one commentator, Chris DeMuth is another one, and that is the decline and wane of Congress, which you’re just alluding to. And as I read your book, maybe the way in which to think about that is the Civil Rights Act itself,  and the way we think about policy became moralized, black and white, and retreated into the judicial and administrative state sectors and there was very little Congress could do about it, or really wanted to do about it in terms of these major issues. You argue that the cost of the Civil Rights Act surpasses any war or effort like the space program or something like that, that the American federal government has attempted.

Christopher Caldwell:
Yeah. I know that the Vietnam War, which was a relatively very expensive war was not that expensive because the deficit in certain years since has been the equivalent of the entire federal budget at the height of the Vietnam War. We know that when we emerged from World War Two, our debt was not larger than the GDP. So I think this is a long standing program, this commitment to social change that began in 1965. I think that’s pretty clear.

Richard Reinsch:
A question that comes to my mind, and I just interviewed Amity Shlaes, and in thinking about her book Great Society, because those aren’t just all civil rights programs. And there’s just a lot of social spending in the Great Society at the same time of this period you’re describing, the Kennedy assassination, moving into the 1970s. How does that figure in and in particular to the proper size of the federal government, the spending of the federal government, a lot of problems we’re facing now, just the social spending aspect of this, and the tremendous costs incurred there and the ways in which those costs sort of subsidized and promote I’ll say, lifestyles that aren’t exactly conducive to independent, free citizenship.

Christopher Caldwell:
Well, that’s an interesting subject, the social consequences of the Great Society, but it’s not really the subject of my book.

Richard Reinsch:
Well, I guess I asked the question because I take it your book really spins, or you start and talk a lot about how the Civil Rights Act starts this new constitution, and gives us sort of a deformed Republic, in many ways, unintentionally, so but there it is. I asked that question, because I’m thinking through your thesis, but there’s a lot of things going on here. But particularly as we move through, sort of the conservative unrest that you also talked about, and we can get out of some of your political analysis, but the conservative unrest that elects Nixon, that elects Reagan, in the end, you end with, right as Trump is beginning to announce his campaign for 2016. And, it’s part of that turn against the Great Society, it’s not just civil rights. And so I’m just trying to think through all of that, and thinking about just the cost of the Great Society. To what extent is that civil rights, to what extent is that something else that’s happening, social spending, et cetera?

Christopher Caldwell:
I think it’s very hard to say because at a certain point, the culture of civil rights becomes the official governing culture of society. So I would have a hard time quantifying it. There’s one problem though, there’s one budgetary problem that I think is particularly salient. That really came to a head in the Reagan years. And that is, Lyndon Johnson built a kind of consensus for civil rights in 1964. But there was never a consensus built for the extension of that regime, that is the regime of regulation and judicial decree into other areas of American life. And so when civil rights started to affect things like immigration law, women’s rights, gay rights and that sort of thing, you had a large agenda that the country was not on board with and would not pay for. So by the late 1970s, there’s something going on, where you had a very expensive and very entrenched new constitution, but a public that was not willing to pay for it, and wanted to go back to the old constitution or so it seemed.

And what happened, I think under Reagan, is that Reagan, to a lot of people’s surprise, was not strong enough to overturn some of the newfangled programs that he had campaigned on overturning, I mean, you remember in the late 1970s, Reagan had said he could eliminate affirmative action with the stroke of a pen, he could eliminate the Department of Energy, he could eliminate the Department of Education. None of that happened, the constituencies were too strong. But you still had a public that was not willing to pay for it. And I believe that the deficit, the big deficit, that country began to run in the 1980s as a result of that legitimacy gap in the new system.

Richard Reinsch:
So let me think about that. I mean, because what are the costs of affirmative action? Or the cost of the Equal Employment Opportunity Commission, or the cost of not getting a job because of affirmative action? Are they truly that weighty?

Christopher Caldwell:
I have not calculated them economically. I just calculated them constitutionally.

Richard Reinsch:
Affirmative action, one can make an argument that it’s constitutional. You could also, I think making a reasonable argument that it’s not. Whereas the Civil Rights Act, I think is much stronger ground. Think in this regard the Bakke case you talk about, there’s three opinions in the Bakke case, famous case about a man who had scored in the 97th percentile, I think on the medical college entrance examination was denied entrance to University of California, Davis medical school. And there are three opinions that the Supreme Court gives on his denial. They order him to be accepted, they argue, on one hand, racial quotas are wrong but race can be a factor. That’s ultimately the plurality opinion authored by Powell, race can be a factor in admissions, along the lines of what has now come to be known as a diversity analysis that somehow racially diverse student body is a good thing, which strikes me as inherently a racialist type of an argument. And then there are four members of the court in that opinion that argued for the colorblind constitution. So you had two reasonable positions, I think. You had affirmative action to redress past grievance, then you had the colorblind constitution, then you had this wacky thing I would think, with Justice Powell and the diversity argument, and that comes to be a huge moment in our political constitutional life.

Christopher Caldwell:
Well, I mean, when you talk about the court, again, I haven’t calculated it, but we have what is called in this country, a diversity industry. And it has, I would say now probably hundreds of thousands if not millions of people employed in it and diversity was pretty much invented in the Bakke case in 1978. What Powell said is a very strange thing in retrospect. He said quotas are bad but there’s a better way of dealing with this, which has been developed at Harvard. It was the Harvard Undergraduate Admissions that had this idea that the Harvard community ought to be diverse. Now, since the problem at the time was trying to find minorities and specifically black people to enter into positions of leadership, you can say that the Harvard undergraduate program probably had an easier time of doing that than any other institution in the entire world. And so to argue that it could be a model for more local, less prestigious universities, let alone like small businesses and that kind of thing which it came to be imposed on, was really an extraordinary blindness. It was an equivalent of a let them eat cake kind of thing. Not every business has the leeway that Harvard has.

Richard Reinsch:
Thinking about your critique of Reagan, which is interesting, and worth I think spending some more time on, but you argue before that there were enough American voters that really wanted Richard Nixon to challenge these programs and their development that we’ve been discussing, but then he’s impeached. And so obviously, that doesn’t come to pass, and we get Ford and Carter. And then you argue that America was actually perhaps at its most conservative moment, with the election of Reagan, and the desire to challenge these programs, but he doesn’t do it. Instead, you argue and this was an interesting critique, he seals the peace between those favoring the Great Society and those opposing it through tax cuts and through deficits. Could you talk more about that?

Christopher Caldwell:
I think that he pretty much called a truce between two generations. And I think you’re right. I do believe the late 1970s was perhaps the most conservative time certainly since the 1920s and maybe all the way back to the Civil War. I think that there was a perception in the public that the progressive impulse had gone too far. And I think that you can see it on a number of fronts. First, certainly on civil rights, second, on sex and what would later come to be called gender as you had people turning on the Equal Rights Amendment, which had nearly been ratified by the requisite number of states. But when you had certainly started to have states unratifying a constitutional amendment, which is something that really hadn’t happened before. And then finally you had a very isolationist mood in the country at large in the wake of Vietnam. So I think it was a very backward looking country, there was a call for a restoration.

And I should say, when I talk about Reagan as having created a truce, I say a couple of things. One is, I think Reagan was one of the two or three great politicians of the 20th century. I do not blame him for accepting that truce when he saw an opening for it. That’s what politicians do to build coalitions. And they tend to be more drawn to building the next coalition than honoring the last promise, but it was very much at odds with what he had come to Washington promising and about the debt, I will say that this is one of the mysteries actually, that really motivated me to write the book in the first place, which is there’s a basic question about the 1980s, which is when we really started going into debt as a regular matter in peace time, really the only time we’ve done it in the country’s history. Why did we have to borrow in the 1980s? If you look at the country, demographically, you would have thought it was the very last time in the history of the country when we would ever need to borrow because we had this gigantic baby boom, and they were all in the workforce, we had a relatively minuscule number of dependent children and dependent seniors. And yet, it was just then that we went so deep into debt. So it’s my belief that what was going on is we were paying for two social orders, the pre-1964 one, and the post-1964 one.

Richard Reinsch:
So the costs of the pre-1964 are to try and enable economic growth, social mobility, I take it, that’s part of the Reagan tax cuts and continuation of the deregulatory efforts that Carter actually started. But then also, you’ve got this new constitution you’ve got to pay for, which you’ve got to spend in deficits to do it. A couple of questions that come to my mind as I read the chapter on debt, which I thought was incredibly interesting one. One, though I assume structural deficits are inevitable, once you get the three together Social Security, Medicare, Medicaid, not to mention the host of other lesser entitlement programs that come along with the Great Society. So in that regard, that seems sort of inevitable that we’re going to end up there, given that we have these constraints on the federal budget that are largely automatic unless you’re going to repeal them or substantially reform them, they’re there. But then also Reagan’s desire to build the military to confront the Soviet Union and also the tax cuts at the same time, which you allude to, I mean, in a way, it just seems, given his goals, that upon entering office, the notion of confronting the civil rights constitution isn’t on his radar screen the way maybe it should have been.

Christopher Caldwell:
It didn’t seem to be, no. And, certainly when you talk about it that way, it wasn’t on anybody’s radar screen. And, I talk about civil rights now, I talk about the civil rights constitution. I think that people were talking about it, even in the 1980s as the rights revolution and you might sort of say well, why don’t you just call it the rights revolution? It sounds less controversial. You know what I mean? I think Reagan was interested in limiting the rights revolution, I think that there was an attempt to nominate, for instance, conservative jurists to the Supreme Court. The reason I use the word civil rights instead of the rights revolution is that I think that a lot of the arguments for the expansion of this style of government to the transfer of power, let’s say, from the democratic parts of our government, to the judicial and the bureaucratic, a lot of the impetus for transfer came from moral arguments, should we allow courts to impose consent decree on such and such a municipality that they need more females in positions of authority? And the answer was always yes, because the question was always posed in terms of this being the equivalent of the Civil Rights conflict of 1964. It was the women are the new segregation or as Joe Biden said the other day, transgender is the new civil rights movement. So, there was always a moral language to this expansion of this kind of state.

Richard Reinsch:
Even Richard Neuhaus, editor of First Things, couched his opposition to abortion using civil rights language, the push to end abortion was the civil rights struggle of our time, he famously said. You note at the end of the Reagan administration, that this seems to ramp up, which might prove your point about ignoring or not seeing what was at stake during the 1980s. And your first piece of evidence is the famous episode of Robert Bork, but then also sort of a new energy and strengthening feminism, as well as gay rights at that time as well.

Christopher Caldwell:
Yes, I think you noticed a few things. Political correctness, the sort of ruining of people’s lives for saying things that were only kind of like, would previously have been considered only mildly wrong or uncouth, like Al Campanis, who was Jackie Robinson’s roommate with the Montreal Royals before he came up with the Los Angeles Dodgers, saw his entire career ruined when he said on television that he thought blacks might lack some of the necessities to be managers. I don’t know if he meant anything by it, but no one was going to give him any benefit of the doubt. That sort of thing came up. You had a very, very increasingly aggressive local government in pushing forward new gender understandings and schools. One that I talked about in the book was the attempt to promote gay parenthood in Queens through a book called Heather Has Two Mommies, which in the early 1990s, was considered just laughable excess of the gay rights movement, but actually, whenever these things were litigated, they would come before judges and the judges were really not of the same view that the voting public was.

And so you had a situation where, by moving through the courts and through the bureaucracies, activists could get written into law, things that were actually highly unpopular, things that really never stood a chance of getting legislated. And so I think the early 1990s was a crucial period. And it kind of came to a head I think, when Newt Gingrich was elected, and there was a widespread belief among Republicans who did not feel they had really reaped the benefits of eight years of Reaganism. There was a widespread feeling among conservatives and Republicans that well, it had really always been about Congress. And so now that we’ve got Congress, everything’s going to change and we’re going to get the conservative revolution that we were promised. But in fact, Gingrich was no more effective than Reagan had been. And it began to dawn on people that the real power was in the courts and the bureaucracy.

Richard Reinsch:
I think it is also the case of the left in this period, communism fails, communism loses and Marxism itself undergoes a change in the intellectual mind and becomes about race, becomes gender oriented, becomes open to appeals, to grievances itself as a part of forming a new left wing. I think about the first time I heard the term political correctness I was beginning high school in the early 1990s. And, as I look back and think, yeah, that all sort of makes sense, because the Leftist mind was changing in response to the conventional failure of its ideas, and needed to put together a new coalition.

Christopher Caldwell:
Yes, but there was a lot of that attitude among conservatives at the time, and I think that people looked on political correctness as utterly ridiculous. I mean, people look at it as a series of jokes and much of the 1992 Republican Convention was that way. It was assumed that the politically correct people in the United States were just holdovers and that the lessons of Europe were kind of written on the wall, our left wingers would soon go the way that the communists had in Europe. But in fact, something like the opposite happened. It turns out that European communism, or let’s say, the worldwide expansion this Soviet type of communism has actually been a kind of albatross around the neck of the left. And once communism was vanquished, people weren’t scared of barriers, let’s say anti establishment or counter cultural causes anymore. And so it wound up giving them a good deal of leeway in fact. And they seemed to have used it.

Richard Reinsch:
So thinking about this sort of fashion and you’re alluding to the unpopularity of a lot of this cultural movement, particularly in the early 1990s. But yet it continues to find success or stay in power. And, the famous phrase moving through the institutions comes to mind, it’s able to ensconce itself. And then it becomes the question of those conservatives who challenge it now face severe reputational costs, and so it has protection. How does this sort of unfold as you see it in the first decade of the 21st century?

Christopher Caldwell:
Well, I think that Barack Obama was a very important figure in sort of sharpening the division that I described in this book.

Richard Reinsch:
One question before we get to Barrack Obama for you, I’m sorry, George W. Bush, though. How does he figure into these two constitutions or how does his presidency figure in?

Christopher Caldwell:
George Bush, I should say he does not figure very largely in my book, he, I would say, was a figure, very similar to David Cameron in the United Kingdom. He was someone who sort of felt that his own party’s ideology was antiquated and was doing his very best to bring it into line with the opposition parties. And you can see that in the only piece of domestic legislation he passed in his entire two terms, which was No Child Left Behind Act having to do with schools. George Bush had a basically centrist view of domestic policy, which is to say that he accepted the powers that had been claimed by courts, and bureaucracies in the Clinton administration. And when 9/11 came, as you will remember, that ran down the curtain on domestic policy, nothing further happened on domestic policy. Although, if you look at the tenor of Bush’s response to 9/11, it was rhetorically very much in line with the idea of expanding rights, Islamic peace, let’s make sure we keep the gates of America open to the world, that sort of thing.

Richard Reinsch:
And then we move into Barack Obama. You know at one point in the book, he was constantly defining what it meant to be an American by progressive standards and suggesting that if you disagreed with him, you’re in effect disloyal and that he enjoyed playing with fire that way, I thought that was interesting.

Christopher Caldwell:
I think that the key thing about Obama is that he’s the first president to really understand this new way of delivering rights, this civil rights’ model of government action as being a new constitution. And he said so even, I think quite explicitly in his Second Inaugural address when he paid tribute to Stonewall and Seneca and Selma, basically gay rights, women’s rights, civil rights.

Richard Reinsch:
As expressing the core of American citizenship. Barack Obama, in my mind, the way if you watch him proceed, it was always to drop little bombs on his opposition in the expectation that they would react or maybe not react, but understand that they were not included and that they were a part of the past. You note in the book, just because people might be afraid socially to express opposition, there was a lot of opposition to what he was doing, but opposition doesn’t necessarily go away because it’s made politically incorrect, it smolders and waits and then comes out at a certain time, an opportune time.

Christopher Caldwell:
Right, and 2015 proved to be an opportune time, but I think that in general the public is less knowable than it was before the time of political correctness.

Richard Reinsch:
The question that I asked you in the beginning is sort of where does your book leave us? And I also know you end the book with the HBO show, Real Time with Bill Maher. And Ann Coulter was on the show, right at the time that Donald Trump just announced, and I remember Jon Stewart mocking Donald Trump at length for his announcement that he was running for the presidency, but you end with that, as if to say, who was the joke on? I thought the joke is on the elites, the joke was on the media, who didn’t see this coming, who didn’t see a Donald Trump campaign being successful, including many in the Republican Party. And I assume you do that because this would explain these two constitutions most pointedly.

Christopher Caldwell:
Well, it just seemed sort of a good note on which to sort of stop the narrative. I thought that was the point that I reached at which I demonstrated that we actually had two constitutions that we’re now in, or that had grown so irreconcilable, that they couldn’t even get the proponents of the one to really even understand the proponents of the other.

Richard Reinsch:
Question for you though, a lot has been noted and you note in your book, a lot of what’s supporting Trump though, many note these counties in rural America, X-urban America, largely white, but a lot of social dysfunction, jobs in certain respects having left those areas. Does just the two constitutions explain their plight? The call for an industrial policy to sort of reinvent, to revive these areas with industrial jobs or manufacturing jobs, does the civil rights constitution now explain all of the social pathologies of those areas or most of them, or is there a lot of other causalities?

Christopher Caldwell:
Well, I don’t think that anything explains everything. But I do think that it’s true that there’s a certain sort of non urban, non counter cultural character in American life, when we might call the white, heterosexual working class male, who first was totally ignored for about 50 years by the grand narratives of this country, if you ask people what their country was now about, this character would be the last person mentioned. And I think that as the civil rights style of government was built out. What it meant is that we used to have the segregated South required special attention from Washington, and Washington had powers to act really forcefully to govern there. And soon women required special attention, and gays required special attention, and immigrants required special attention. And pretty soon you had this group of people who were the only people in the country who were not getting special attention. And so their claim to be second class citizens was actually more than a metaphor. And I think that a lot of the, let’s say, passion that they brought to the Trump campaign which so surprised people in 2016 was actually kind of, it was only a matter of logic that it would arrive sooner or later.

Richard Reinsch:
Christopher Caldwell, thank you so much for coming on to discuss your new book, The Age of Entitlement. I appreciate it so much.

Christopher Caldwell:
Thank you, Richard.