American Agonistes

Christopher Caldwell’s essays advance exquisite understandings of politics, culture, and institutions not with syllogistic arguments, essays laced with ideology, but with observations alone. Caldwellian reflections are typically inserted with precision after a string of uncomfortable facts has been listed. They untidy our collective wisdom, and sear the essay in the reader’s mind. His judgment on a subject frequently becomes the measuring rod for additional arguments and theories on the same matter.  In a 2017 First Things essay “American Carnage” on the opioid crisis that cataloged its unprecedented devastation compared with prior drug abuse episodes in American history, came this demanding reflection on our ineffectual response:

We in the sober world have, for about half a century, been renouncing our allegiance to anything that forbids or commands. Perhaps this is why, as this drug epidemic has spread, our efforts have been so unavailing and we have struggled even to describe it. Addicts, in their own short-circuited, reductive, and destructive way, are armed with a sense of purpose. We aren’t.

Here’s Caldwell in a Weekly Standard essay in September 2015 titled “Waves from the South” describing the fumbled reactions of European Union leaders to the Muslim migration crisis: “You could tell that the plan European Commission president Jean-Claude Juncker announced on September 9 [2015] for distributing 160,000 refugees around the European Union was slapdash. You could tell by the number of times Juncker felt he had to browbeat his listeners about their Nazi past.” As Caldwell details in the article, the EU leadership was scrambling as their comfortable illusions about Kantian globalist peace—a peace they had not secured but, as Caldwell notes, was given to them by American arms—were being crushed by real, potentially dangerous humans arriving from a distant civilization en masse to European cities virtually every day. Europe wasn’t a scene for a tourist postcard but for a postcard from the edge. Caldwell revealed the shifting tectonics that would come to define a new politics in Europe.

Most recently, his essay “Why Hasn’t Brexit Happened?” in the Claremont Review of Books challenged another comforting consensus: Brexit was failing because benighted conservatives and other provincial types botched it, and responsible actors were now holding them accountable. This group was merely demanding another vote, a faux exit, or an indefinite political war of attrition that would leave the UK in the EU. They were the sensible, calm, and deliberate ones. Caldwell depicted how virtually every political, cultural, and media institution, even the UK Supreme Court, had thwarted Britain’s exit from the European Union. The British elites were Europhiles and they weren’t going to lightly part with an EU citizenship that contained multitudes. The Leavers in Blythe Valley be damned.

[G]iven that Britain is the first country to issue such an ultimatum, given that pro-E.U. elites in other European countries have reason to fear its replication, given the moral ambitions of the E.U. project, given that the British who support Remain have transferred their sentiments and their allegiances across the channel, given the social disparity between those who rule the E.U. and most of those who want to leave it, how could the reaction of Britain’s establishment be anything but all-out administrative, judicial, economic, media, political, and parliamentary war?

On this, Caldwell was right, and the massive voter support Boris Johnson and the Brexit Conservatives received in last December’s vote, which unequivocally stated that the people meant Brexit, confirmed it. The UK elite’s anti-democratic machinations were finally defeated.

The Civil Rights Constitution

It should come as no surprise then in turning his eye to America’s rambunctious and unpredictable politics in the Age of Entitlement, he would uncover another rough gem: the Civil Rights State as the anvil upon which our nation wages its incessant political struggles. According to its subtitle, the book grandly aims to understand America Since the 1960s. There are chapters on Race, Sex, War, Debt, Diversity, as well as the Winners and Losers in America during this period. However, everything turns in Caldwell’s mind on the Civil Rights Act of 1964 and the regime change that it unleashed.

Caldwell states his thesis boldly: “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—and the incompatibly would worsen as the civil rights regime was built out.” This regime, according to Caldwell, has so thoroughly entangled America politically, legally, and culturally that a new, rival Constitution now lives and challenges the old “de jure constitution of 1788.” Moreover, this “de facto constitution of 1964” now “commands the near-unanimous endorsement of judicial elites and civic educators.” To the “increasing necessity that citizens choose between these two orders, and the poisonous conflict into which it ultimately drove the country, is what this book describes.”

To be clear, Caldwell doesn’t call for the repeal of the Civil Rights Act, the Voting Rights Act of 1965, or the Fair Housing Act of 1968. He notes the hideousness of Southern segregation and its “sham democracies” that denied blacks’ basic political and civil rights. Caldwell, though, dismisses too quickly the color-blind interpretation of the Civil Rights Act and of the Constitution itself. He makes this move according to the representations of many civil rights leaders and politicians in the aftermath of the act’s passage. This leads him to the conclusion that it wasn’t ultimately about civil rights but “human rights.” Caldwell, ultimately, leaves us with two irreconcilable constitutions: the constitution of 1788 and of 1964. But this misses how early desegregation opponents, certain civil rights activists, and conservatives have made arguments for civil rights and a color-blind Constitution. They haven’t been as successful, but this road is both faithful to the Constitution and to limited government. It remains on offer to us today–just ask Justice Clarence Thomas.

Caldwell recalls the arguments of those who opposed the act precisely because of the new institutional powers it would lodge in the federal government, which would erode constitutional norms of federalism, separation of powers, free speech, and the implied constitutional right of freedom of association. Fears of mandatory school busing, public and private hiring quotas, immigration quotas, were laughed away, Caldwell notes. Yet, “By the 1970s, there was race-based busing nationwide.” Many of these criticisms were confirmed by the early 1970s, which almost cements the act in principles of group rights, quotas, affirmative action, and executive and judicial orders requiring private actors and state and local governments to discriminate or otherwise make decisions according to race. The color-blind provisions of the act in Title IV and Title VII were subsumed by the impulse to achieve racial balance. While busing students to achieve racial integration was not required in the act, the Supreme Court compelled it in a unanimous decision in Green v. New Kent County (1968). This case required school districts that had previously organized separate systems to have a unified one with schools that weren’t “racially identifiable” meaning they reflected the racial composition of the district. In practice, this led to nearly two decades of nationwide busing for racial balance. The fallout was not limited to education.

In practice most American businesses became open to lawsuits for discrimination, “whether they had engaged in it intentionally or not.” A business could limit its exposure to such suits if it acted prophylactically by imposing on itself its own affirmative action program. President Johnson in the summer of 1965 had already made such programs mandatory for companies with at least 51 employees who sought government contracts. But affirmative action in 1965 was somewhat different from a simple racial preference. It meant the search for those minorities who were genuinely qualified for the position but who had perhaps been overlooked. This would change as the 1970s unfolded.

Caldwell underlines how the “disparate impact” theory announced in Griggs v. Duke Power Co. (1971) could undermine even neutral tests administered to all employees to determine their aptitude for company purposes. Because the results of the tests for the Duke Power Company disadvantaged black employees relative to white employees for future company advancement, even though the test was given without any racist intent by the company, the Court ruled out its use: “absence of discriminatory intent does not redeem employment procedures…that operated as ‘built-in headwinds’ for minority groups.” Caldwell’s conclusion on the Griggs holding is worth quoting: “the Griggs decision made clear that the government was now authorized to act against racism even if there was no evidence of any racist intent. This was an opening to arbitrary power. And once arbitrary power is conferred, it matters little what it was conferred for.” Griggs and Green, among other cases, and the increasing reliance on executive orders to implement civil rights, meant that “Just a half decade into the civil rights revolution, America had something it had never had at the federal level, something the overwhelming majority of its citizens would never have approved: an explicit system of racial preference.”

In the foundational chapter on Race, he stresses that “the civil rights model of executive orders, litigation, and court-ordered redress” chartered a new era of government power and public thinking about how to engage in political questions that involved “fairness.” Thus, civil rights talk became the language of power to challenge traditional roles of men and women, the morality of homosexuality, the standing of immigrants, and rights for the disabled. Caldwell concludes: “The civil rights movement was a template. The new system for overthrowing the traditions that hindered black people became the model for overthrowing every tradition in American life…”

Reagan’s Failure?

But the pushback came in the last half of the 1970s. After intriguing chapters on feminism and Vietnam, Caldwell observes that Americans were turning against the progressive crusades launched in the 1960s. The Vietnam chapter almost seems misplaced in a book that primarily frames American agonistes through the “civil rights revolution.” But Caldwell reframes Vietnam as a war waged according to the foundational assumption of progressivism: federal government power unbound can cure virtually any ill, even in Southeast Asia. The American public supported the war and only slowly ceased to believe in it when they sensed its futility. What Americans were doing by the late 1970s, Caldwell perceives, was rejecting “The three great progressive endeavors of the preceding decades—civil rights, women’s liberation, the attempt to impose a liberal order on the world militarily.” Moreover, “They brought California governor Ronald Reagan to power to put an end to it.” And Reagan would fail them, Caldwell intones.

One of the intriguing moves Caldwell makes in the book is an attempt to disabuse conservatives of Reagan adulation. Reagan, he flatly states, was brought into office during a high tide of conservative disaffection with the consequences that ensued from civil rights and the Great Society. Instead of challenging the source of that angst, Reagan permitted the pre-Great Society and the post-Great Society governments to be paid for by debt-financed tax cuts. This left both sets of constituencies satisfied. Reagan actually “saved the Great Society in the same way that Franklin Roosevelt is credited by his admirers with having ‘saved capitalism.'” More damningly, Caldwell singles out Reagan’s immigration policy as another mark of failure. Curtailing immigration was a task voters had given him, but “Reagan flung open the gates to immigration while stirringly proclaiming a determination to slam them shut. Almost all of Reaganism was like that.”

But this is a bit much. On Reagan, the Great Society, and its voracious spending needs, even Caldwell just a few pages earlier notes the predicament Reagan found himself in.  What happened in the near decade between Nixon and Reagan, Caldwell states, is that “entire subpopulations had become dependent on the Great Society. Those programs were now too big to fail.” According to the author of the Age of Entitlement it was Nixon’s opportunity to moderate the civil rights revolution and the size of the Great Society’s spending. His impeachment and resignation ended that moment prematurely. Nixon, though, expanded affirmative action throughout the federal government in 1969. He also wasn’t immune to social spending, so even if he stayed in the White House, I don’t think the counterrevolution was one that Nixon would have made.

Reagan’s priorities were different from the ones that Caldwell ascribes to him. He wanted to cut taxes, end the Soviets, and reduce the size of government. He succeeded at the first two, and failed on the third. To the extent he saved the Great Society through tax cuts and deficit spending, we should remember the depths of those cuts and how they enlarged paychecks of workers at virtually every income level. Secondly, the notion, which didn’t pan out exactly, was that supply side tax-cuts might pay for themselves through exponentially increased economic activity. There was too much optimism on that score. However, the bargain that secures a winning political coalition, while not rubbing opponents’ noses in it, is one most statesmen take. To delay is to live.

For Caldwell, Reagan’s delay led to our contemporary ferment and our national debt. Currently, “Democrats, loyal to the post-1964 constitution . . . owed their ascendancy to a rollback of the basic constitutional freedoms Americans cherished most. Republicans, loyal to the pre-1964 Constitution, could not acknowledge (or even see) that the only way back to the free country of their ideals was through repeal of the civil rights laws.” This confrontation between two constitutions, with white Americans realizing that it de-privileged them, along with the rise of feminism, mass immigration, gay rights, political correctness, and multiculturalism, led to a country that couldn’t think or talk straight. This meant that the political class no longer understood those they ruled.

Enter Donald J. Trump, straight out of Queens. Caldwell closes the book with an episode of Getting Real with Bill Maher in June 2015. Maher asked Ann Coulter who of the 10 Republican primary candidates she thought could win the general election. She said none of them could would win the Republican nomination. Trump had only announced his candidacy three days before. Coulter “stonily spoke his name” as the candidate who would win the presidential election.

“The studio audience roared with laughter.”

The Colorblind Constitution

I am loath to disagree with Caldwell, but I must. I think the book is wrong to the extent it paints conservatives as overarching enemies of civil rights. What most conservatives came to oppose was the mutation of the Civil Rights Act and the Constitution into weapons of racial influence, group rights, and the extra-constitutional manner in which letters and guidance documents from the Office for Civil Rights violate the Administrative Procedure Act but receive de facto legality. Much of the challenge to the colorblind interpretation of the equal protection clause and Brown emerged through Court decisions and executive agency actions. Strangely, to achieve the goal of racial egalitarianism, progressives had to pick up where the former segregationists left off. That is, they again made race a factor in government classifications of citizens in numerous contexts.

Conservative jurists in recent decades have been the main opposition to the racial sorting Constitution. In a string of cases over the past three decades the Court has sought to limit expansive interpretations of legislation, state and local affirmative action plans, the Americans with Disabilities Act, “disparate impact,” and it ruled unconstitutional the Violence Against Women Act. For this, they have been accused of attempting to undermine equality and civil rights. As many legal scholars have observed, the Rehnquist and Roberts Courts have aimed to return to the “color-blind” understanding of equal protection that inspired the Brown decision and the civil rights movement of the 1960s. Of course, many of these same scholars reject such an understanding as a just one, preferring the constitution that Caldwell describes. But the colorblind position is on solid ground and its rehabilitation is a superior constitutional principle and political argument for conservatives. Caldwell’s failure to adequately consider it is a significant lacuna in the book.

As Shep Melnick argues, “the NAACP lawyers who brought the long string of cases culminating in Brown” endorsed the “colorblind” interpretation of the Fourteenth Amendment. It was chief counsel Thurgood Marshall before the Court who argued that the Fourteenth Amendment denies states authority “to make any racial classification in any government field.” Leaders in the Civil Rights movement in the late 1960s argued against the collection of any hiring or employment data regarding blacks and whites. Of course, the Rehnquist and Roberts Court, the NAACP, and those who claim this argument stand on Justice John Marshall Harlan’s legendary dissent in Plessy v. Ferguson (1896) that argued the government use of racial classifications is an invitation to majority tyranny. Justice Thomas therefore is correct to argue in his concurring opinion in Parents Involved v. Seattle School District (2007) “what was wrong in 1954 cannot be right today.” In his majority opinion in the same case, Chief Justice Roberts memorably wrote “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Case closed.

What must happen now is for the strength and truth of these arguments to be advanced not just by lawyers and jurists but by politicians, educators, citizens. This should not be a rearguard action, but one made in the full confidence that on this position rests our constitutional inheritance. Caldwell’s book shows us an America divided by an unbound notion of rights, but we must show America what the Constitution demands: liberty under law for all persons not counted or sorted by race or any other criteria.