Skip to comments.How the 1964 Civil Rights Act made racial group entitlements inevitable
Posted on 05/19/2005 12:55:53 AM PDT by rmlew
Through half of lifetime of observing American conservatives' and neoconservatives' passionate and principled resistance to affirmative action (a resistance that notably waned after the 2003 Grutter decision), I many times heard them quote Hubert Humphrey's famous pledge that if the 1964 Civil Rights Act required racial quotas, he would "eat the paper it's written on." Recently I looked up the text of Humphrey's remark, which he made on the floor of the U.S. Senate on April 9, 1964:
It the Senator can find in Title VII ... any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there.
This changed the entire significance of the remark. Of course the bill did not contain language mandating racial quotas. In fact, it contained the very opposite: an amendment declaring that the bill could not be interpreted as requiring racial quotas. So Humphrey's assurance, upon which conservatives in later decades have placed such weight, was meaningless. The question was not whether the bill required quotas. The question was whether, regardless of any anti-quota provisions the bill might contain, it would lead to quotas. And, of course, it did--and far faster than its critics had anticipated. Immediately after the passage of the 1964 Civil Rights Act, the Equal Employment Opportunity Commission, the federal enforcement agency created by the Act, declared that the failure of an employer to have the same percentage of blacks in his workforce as existed in the general population was prima facie proof of racial discrimination under the Act. As a result of this regulatory fiat, the only way an employer could prove he wasn't racially discriminating was to engage in racially proportional hiring. The era of racial preferences had begun. Yet Senator--and soon to be Vice President--Humphrey never ate the paper the 1964 Act was written on, nor was he obliged to, because his claim had been correct, if in a strictly narrow sense: the bill did not contain explicit language that mandated quotas. What the bill did was to create a federal agency that had the power to carry forward the bill's real, though unstated, purpose.
What was this purpose? Contrary to neoconservatives' dreamy thoughts on the subject, the true aim of the civil rights movement, of which the 1964 Act was the crowning achievement, was not to attain a universal, race-blind equality of rights for all persons. It was to advance the condition of black people, by any means that would work. Many leading civil rights leaders in the 1940s and 1950s, far from being liberals who believed in America's essential goodness, were leftists. They saw America as an incurably racist society that would have to be manipulated and coerced into treating blacks decently. Mere equality of rights, they felt, could never overcome whites' entrenched anti-black prejudices or the black inferiority that the left thought resulted solely from such prejudices. The civil rights movement therefore sought equal justice under the law for blacks, an ideal that mainstream whites would accept. But equal justice was only a step toward the real goal, which was, in President Johnson's words, equality as a fact and equality as a result. The proof of this observation is that as soon as the principle of equal rights had taken blacks as far as it could take them (with the passage of the Civil Rights Act in 1964 and the Voting Rights Act the following year), the civil rights movement abandoned equal rights as its defining ideal and replaced it with racial equality of outcome.
In saying this, I am not accusing leaders such as Martin Luther King of insincerity. I do not know what King's real thoughts were during the earlier, legal-equality phase of the civil rights movement, and it doesn't much matter what they were in any case. My point is that the civil rights movement, regardless of what its leaders' and followers' conscious purposes may have been prior to 1964, had an inherent tendency toward egalitarianism of result, and that once this tendency kicked in, those who belonged to the movement would support it one way or another, as, of course, happened with King himself.
Pro-individual-rights conservatives (who in the early 1960s were called liberals) have argued for decades that the proper, individual-rights meaning of the Civil Rights Act should have been insisted on from the start, regardless of the pressures to change it into a group-entitlements law. But these conservatives have never asked themselves a simple, practical question: who was going to insist on it? America's white majority, perhaps?
The problem with this expectation was that the white majority, in signing on to the Civil Rights Act, had canceled out their own moral authority. They had conceded that they were responsible for the black inferiority that the Act was intended to cure. How then could whites in good conscience stand against further steps designed to help blacks? That would only be repeating the very racial sins of which whites had just collectively repented when they supported the Act.
Whites did not grasp at the time that they were making such an admission or putting themselves into such a bind. Their attitude was, "We acknowledge that our black fellow Americans have been treated unfairly in this country; now we'll treat them fairly." They felt that this would allow blacks and whites to move forward together on a more humane racial footing, as represented in the popular imagination by Martin Luther King's "I have a dream" speech. They naïvely thought that passage of the Civil Rights Act would lift a burden of guilt from their shoulders.
In fact, the opposite happened.
As the civil rights consensus unfolded following passage of the 1965 Act, it enunciated a utopian set of rules which said that the races were and ought to be completely equal in their abilities, qualities, and outcomes; that any vestige of racial discrimination in America had to be totally eliminated; that any failure to do so was further proof of white guilt; and that whites as the presumed discriminators were henceforth prohibited from acting in the interests of whites or even from thinking of themselves as whites. The prohibition extended to white defense against anti-white discrimination.
Through this assumption of white guilt, as well as through the outlawing of racial discrimination even in private areas such as businesses, the civil rights movement gave birth to a new America in which race and ethnicity (or rather white race and ethnicity) would have no legitimate place, an America that consisted only of individuals possessing equal rights (or, rather, an America that consisted only of individuals where whites were concerned, but consisting of organized racial groups where minorities were concerned). This new, liberal-individualist order (applied primarily to whites) meant that the white majority as the white majority could no longer play a leading and representative role in America, or, indeed, any role at all, except as the presumed source of horrific injustice that had to be corrected and purged. It also meant that the white-majority culture--meaning Western culture and civilization--could no longer be seen as a worthy ideal for our society.
Further, if these new rules and arrangements were morally right, then the previous social order, which tacitly recognized the importance of race and culture and greatly admired the historic achievements of the white race as the creators of that culture, had been horribly, inhumanly, and indefensibly wrong. All of American and Western history was now judged to be morally defective. These new attitudes led to moral relativism, at least where the inherited moral standards of whites were concerned; to cultural relativism, which said that Western culture was no better than any other, including primitive societies and pre-Columbian human-sacrifice cults; and to multiculturalism, which said that America consists of a collection of equal cultures with no majority or dominant culture.
nother factor in whites' acceptance of minority group entitlements and multiculturalism was that blacks on average turned out to be much more different from the white majority than idealistic liberals had imagined. It soon became apparent that even in an America with a formal equality of rights, an America where many blacks had attained middle-class status (a phenomenon that had been progressing rapidly before the Civil Rights Act), the black population as a whole remained significantly behind whites in income, law-abidingness, family formation, intellectual achievement, and other social indicators. Since legal equality was not seen as leading to equality of outcome, the left sought to bring such equality about by intrusive and unjust means, including the trashing of society's behavioral and educational standards, since under those standards blacks on average did far worse than whites. Again, given the white majority's liberal beliefs, they had no choice but to surrender to this revolution. They had discovered to their shock that black-white racial differences were much larger than they had thought, which meant that mere non-discrimination toward black individuals would not close the racial gap. But since, in the aftermath of the civil rights revolution, non-discrimination was now whites' only officially approved moral principle, they could not simply abandon it. Instead, they redirected it, away from the individual black person, and toward blacks' culture. Non-discrimination toward black individuals, in the name of blacks' assumed sameness to whites, was changed into non-discriminatory acceptance and endorsement of the black culture (and soon of other minority cultures) in the name of its ineluctable differences from the white culture.
To criticize the profound harm done to our society by the civil rights movement and its aftermath is not to defend all of the South's pre-civil rights racial policies. For example, the Jim Crow laws--which not only allowed discrimination against blacks, but mandated it, most notoriously in public accommodations--were an offense to the nation's conscience and would have had to be eliminated one way or another. But the regime brought into being by the 1964 Civil Rights Act did not stop at correcting specific racial injustices such as those that came under Jim Crow. By attacking, in principle, all racial discrimination, including private racial discrimination, it in effect delegitimized all natural and historical human groupings and cultures, if they were white. It delegitimized white people's most basic rights of free association and of property, since such rights were now seen as having only one end in view: the oppression of blacks. And, as pointed out above, it said that whites' entire history as the American majority was a scandal. The ongoing functional and economic deficiencies in the black community were seen as the result of the same historic white sin, which thus seemed to be still operative in the present as well as the past.
So, to repeat the question I asked before: Having allowed the cosmic charge of racism to be heaped on their own heads, would whites find it in themselves to oppose further measures, such as racial group entitlements, seen as urgently necessary to improve blacks' condition? Having lost their moral standing and self-confidence as a group, would whites have the will to uphold the written provisions of laws against powerful racial and political interests that wanted to use those laws for illegitimate and unconstitutional (though now morally sanctified) purposes? The answer is clear in the record of the past 40 years: they did not have the will.
Contrary to the hopes of individual-rights conservatives, a purely race-blind America was never possible, because once legal racial inequality had been removed, there was the expectation that substantive racial inequality would disappear as well. But enduring racial differences in abilities and behavior meant that substantive equality could not appear spontaneously by itself. That left two alternatives: the institution of race-conscious preferences for the minority, or the successful resistance to such preferences by the majority. Consider Hubert Humphrey's stand in the Senate, which we discussed at the beginning. Why did he make his passionate assurances that the Civil Rights bill could not possibly mandate racial quotas? Why did he add a supposedly rock-solid amendment to the bill to stop such an eventuality? In taking those positions, Humphrey was tacitly acknowledging that the new law would lead to a call for racial group preferences, a call that, if the Act were to keep its integrity, would have to be opposed. Therefore someone would have to oppose it. Someone would have to insist on upholding the proper meaning of the law against the efforts of those who wanted to bend it into a socialistic shape. But who would that protector be? It wouldn't be the organized black community; that was simply assumed, as they were gaining too much from preferences to give them up. It wouldn't be the white civil rights advocates; that was simply assumed. The only possible defenders of individual rights who would have the numbers and political strength to win the battle would have to be white people who were not part of the civil rights movement. But, as we've seen, the white majority had been morally discredited, at least in the eyes of the ascendant liberalism, by the very passage of the Act, which implied that America's entire history was tainted by white sin.
Pro-individual-rights conservatives have always harked back to the dream of Martin Luther King, the Golden Age of a race-blind society that was betrayed by affirmative action. But the Golden Age never existed. The dream is, literally, a dream, as proved by the brute fact that minority racial preference were instituted almost the instant that the 1964 Actthe epitome of the race-blind-society ideawas passed. Furthermore, not only did the race-blind society never exist, it cannot exist. This is because an America that declares itself to be, not just a race-blind government and legal system (which is both right and possible, within reasonable limits), but a race-blind society, can only do so by outlawing any group-consciousness on the part of the racial majority, which delegitimates the majority culture and ethos, which in turn liberates and validates the group-consciousness and will-to-power of minorities, which then begin to tear the society apart.
In sum, though the 1964 Civil Rights Act formally prohibited racial preferences, it turned blacks into a self-interested, aggrieved group that was expected to demand racial preferences, and it delegitimized the very group--the white majority--that was being tacitly depended on by the bill's leading supporter to resist such preferences and enforce the bill as written. The Act made it impossible for the white majority to lead America, while it transformed blacks into sacred victims whose clamoring for group equality of results could not in good conscience be opposed.
These are the group-power dynamics that underlay the transformation of civil rights into a permanent system of racial privileges for blacks and other minorities in this country. Yet, as alluded to above, during the several decades of this controversy, mainstream conservatives seemed to believe that if they just kept invoking the ever-more-disregarded principle of individual rights, the principle, like an autonomous being, would somehow return to life and become once again the law of the land. This was a fantasy, born of the neoconservative view of America as a set of abstract ideas. The reality is quite different. In order for a society to maintain its principles, it must have actual people who are ready, willing, and able to defend those principles. An America whose historic white majority has been stripped of its moral legitimacy lacks such people.
As whites re-discover and re-assert their natural status as America's cultural majority that they gave up 40 years ago, blacks and other minorities will continue to enjoy legal equality of rights. The proper sphere of race-blind equality is in the state's dealings with individual citizens. Government and law must not discriminate by race. But the same does not apply to society. Society consists of human beings, and race is a part of what human beings are, just as sex and family and nationality and religion are a part of what human beings are. Therefore society cannot be made race-blind, any more than it can be made sex-blind or family-blind or nationality-blind or religion-blind. The cost of trying to do so is the destruction of the legitimate liberty and cultural particularity upon which human flourishing depends.
What is needed, in short, is a balance between our traditional American culture and a liberal legal system operating within the parameters of that culture--a legal system that supports the culture and its values rather than, as at present, seeking to undermine and destroy them. The liberal equality of individuals under the law is part of the essence of America. But it must not be America's primary value. Liberal values--the belief in free inquiry, the treatment of all citizens according to the same rules--have an indispensable place in our heritage. But liberalism, the ideology that makes the pursuit of equality the most important thing, spells the death of our heritage. If our nation is to survive, it must have ideals and goals higher than the liberal project of treating all people equally, and the leftist project of making all people substantively equal. Liberalism and leftism are unable to supply those ideals, which come from cultural, constitutional, and transcendent sources.
Auster rightly condemns the ill effects of the 1964 Civil Rights Act, but then he demands that "whites" reassert control of the culture. How in the world does he expect the country to do that? We don't have anything in the constitution delineating the power of whites or blacks to control things. We have a constitution that is supposed to be supplied equally to everyone. The solution is not to give unconstitutional power to some particular ethnic group (Blacks, etc.) or arbitrarily appointed group representing the so-called majority (white europeans). It is to apply the law equally because we cannot and should not have particular ethnic groups controlling anything. Sane and reasonable people of whatever skin color or ethnic designation should take control of guiding society...not some ridiculous "white" majority.
Auster makes a few racist comments himself in this article. Am I not supposed to ally with Thomas Sowell because he's Black? My values coincide with Sowell's and other conservatives of whatever skin color or ethnic origin much more than they do with Warren Beatty's or other liberal whites.
In both those instances the left invoked the moral high ground of remediating first slavery and then racism.
The Left has learned a potent lesson from these experiences: Our sacred constitutional rights can be reduced to mere hortatory language if the cause invoked to justify the transgression is transcendent. In this new world order the ends justify the means.
Having gone to school on slavery and racism, the left has sought to apply this paradigm at least two more times. First, the feminists' triumph against all reason and logic to the point beyond equal treatment for females to distortion of academic and intellectual honesty at higher institutions like Harvard. And to the converting of our military into a sociological laboratory for the advancement of feminist agenda. And to the death of tens of millions of unborn children, all justified in the name of a woman's constitutional right to privacy. Simply put, the values of feminism "transcended" the right to live of an unborn baby.
Now the Left is busy playing this game for sodomites. Homosexual rights are exulted over the right of the people of a state to prohibit sodomy.
This begs the question of the author of such mischief, when it occurs because the means employed are excessive or because the ends (equality of outcome instead of opportunity)are misconceived. sometimes the author is the legislative branch; Sometimes the executive; Sometimes it is a semi-private institution like Harvard or PBS or a private institution like the New York Times. Often however, the author of these extra-constitutional shake ups of our constitutional way of life is the very institution, contrary the the author of this article, whose constitutional duty it is to prevent these excesses.
The left now knows it can play this game in the "legal" arena but, of course, if the courts play, the arena ceases to be "legal" but it becomes a forum for public relations. The rule is lost because the litigants recognize that the game is to establish the flavor of the season and the court will distort the constitution to vindicate that flavor. So the rule of law is lost. So the dispute in the Senate over judicial filibusters becomes the proxy for constitutional adjudication. The Left have not just elevated one race over another, they have stolen our constitutional soul.
God help us.
Yes it is. Contrary to your protestations, you are defending just that.
American's desperate, good intentions do not make good law. They often result in awful laws. And, as usual, in the case of the 1964 Civil Rights Act, Americans with good intentions foolishly pressured legislators with bad intentions to pass a law that would only exacerbate the problem.
Simply put, celebrating the 1964 Civil Rights Act if you are a classical liberal is like celebrating Marx's Das Kapital if you are a capitalist. The fundamental concern of a classical liberal is to ensure that individual rights are protected for all. Yet, as the author points out, the authors of the Civil Rights Act intended not to ensure that minorities were guaranteed THEIR civil rights, but to "delegitimize...white people's most basic rights of free association and of property, since such rights were now seen as having only one end in view: the oppression of blacks."
How then can we recognize and rectify past misdeeds without surrendering moral authority and the right to define our nation?
How can European Americans retake moral authority and leadership without racism or undermining the principles of equality we have come to believe in?
Simply put: none of that is government's job. This is where the 60's leftists succeeded in suckering you and America. Your job is to make a good life for you and your family. Government's job is to provide for a common defense and keep your family from physical harm by others. It is not to make up for past misdeeds. It is not to provide you with moral authority. It is not to remedy the scarred psyche of millions. It is not to provide equality of opportunity, but equality BEFORE LAW.
Life sucks. Government is not supposed to be and cannot afford to be a safety net to prevent that, and anyone who pretends that it is and can intends to take advantage of your charity, either by not giving personally to charity themselves, since 'the government is taking care of it,' or by having some other personal benefit from the nanny state, such as Social Security, student loans, Medicare, etc.
Nice post BUMP!
"Yes it is. Contrary to your protestations, you are defending just that."
If I say that Roe should be reversed, does that make me anti-abortion or pro-life? No, it makes me against the federal government intervening in the issue.
If I say that the War Powers Act is wrong, does that make me pro-war or anti-war? No, it makes me against the federal Congress abrogating its constitutional duties.
You can argue against a law on procedural grounds. You can argue against a law on moral grounds. You can even--believe it or not--argue against a law on the basis of federalism.
You evidently see all civil rights laws only in terms of moral grounds. So he is a racist, because no one could oppose civil rights laws without being immoral in your eyes.
Your simplistic vision of what is 'good' law demonstrates how easy it is to fool some of the people all of the time. No law is good. Good is in the discretion of the executive.
Rmlew may be a racist to you because of your perspective. But I see the law in terms of constitutionalism and federalism. And because no one could advocate the extension of federal power into state civil rights without knowing they are advocating the permanent establishment of government intervention in that arena, and no conservative would do that for fear that same government in the hands of leftists would enforce a different vision of 'rights' (see affirmative action, homosexual marriage, etc.), you are a fool, and especially foolish when you call yourself a conservative.
I've conversed with rmlew and I find him to have a stand-up character.
After the "fool" comment, that would be all.
Moreover, anConstitutional law, regardless of its intent is damaging to the Republic.
A stand-up character you go on to claim willfuly defends the pre-Civil Rights act racist actions of Southern state governments.
How interesting your definition of "stand-up character" must be.