Caldwell’s basic thesis is that the country’s current divisions are the product of a longstanding and as-yet-unresolved conflict over the legacy of the ‘60s, and over race and civil rights in particular. His radical innovation is to argue that the legal regime that emerged out of the Civil Rights Act of 1964 and its subsequent expansions was, in his words, “not just a major new element in the Constitution,” but “a rival constitution, with which the original one was frequently incompatible.”
But how is the Civil Rights Act of 1964 a “de facto constitution” incompatible with the original one? In a strict legal sense, Caldwell argues, it is that the Civil Rights Act and associated Supreme Court decisions, such as Brown v. Board of Education, conflicted with or modified what had traditionally been understood as Americans’ constitutionally guaranteed rights. Court- or legislatively-mandated integration, for instance, curtailed freedom of association, in the same way that legal prohibitions on discrimination in hiring or renting out a room curtailed the property rights of a business or hotel owner.
...Caldwell’s concern is less legalistic and has more to do with how “civil rights ideology… became, most unexpectedly, the model for an entire new system of constantly churning political reform.” He argues that the act and its subsequent expansions provided a blueprint, a moral rationale, and a legal toolkit for ambitious and frequently unpopular social engineering projects, justified in the name of an ever-proliferating suite of rights and operating outside the bounds of traditional democratic and constitutional legitimacy.... When the Supreme Court, in Roe v. Wade, legalized abortion based on a hitherto unheard-of construal of the 14th Amendment’s due process clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), or when, in Obergefell v. Hodges, it did the same for gay marriage, it was acting according to the spirit of this de facto constitution rather than the letter of the actual one.
...Near the end of the book, he mentions in passing that Republicans have failed to see that “the only way back to the free country of their ideals [is] through the repeal of the civil rights laws.” It’s a shocking notion, and it is hard to believe that even Caldwell believes it is a viable way to proceed. In another late passage, he writes:
As they moved inland in the seventeenth, eighteenth, and nineteenth centuries, Americans had obliterated whole cultures with a clean conscience, as if the continent were unpeopled. In the half-century after the mid-1960s, America’s leaders, still dreaming their big dreams, obliterated their own cultural institutions in a similar spirit.
One gets the sense that these lines are closer to his heart. The story his book tells is a kind of reactionary American tragedy — a lament for a version of the country that is now gone, dispatched by the same hubris and ambition that powered its ascent. As in a tragedy, events seem decreed by fate. There is little sense they could have turned out otherwise.
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Originally Posted by Mister D
