Christopher Caldwell’s new book argues that, for the past half-century, the U.S. has been effectively living under two competing constitutional regimes.
The Age of Entitlement: America Since the Sixties, by Christopher Caldwell (Simon & Schuster, 352 pp., $28)
Christopher Caldwell’s new book, The Age of Entitlement, offers a striking revision of recent American history that has the advantage of being readily summarized. The polarization of political opinion and the dissolution of the American fabric, he argues, has its roots in the passage of the 1964 Civil Rights Act, which represented a sharp break with the past. “The changes of the 1960s, with civil rights at their core,” he explains, “were not just a major new element in the Constitution. They were a rival constitution, with which the original one was frequently incompatible.”
The common narrative surrounding civil rights, he maintains, is that it represented a fulfillment of the American promise of liberty. Since the Founding, America has been steadily expanding the franchise to more classes of people. From the elimination of property requirements for voting to the post-Civil War due-process amendments, from the Nineteenth Amendment granting suffrage to women to the bestowal of full citizenship on Native Americans in 1924, from desegregation and the civil rights movement to lowering the voting age, and all the way up to the Windsor and Obergefell Supreme Court decisions extending full rights to gay people, America has become fully invested in treating all its citizens as “created equal.”
As Caldwell sees it, this standard version of American history ignores the disruption caused by the key judicial decisions and legislative actions of the fifties and sixties surrounding desegregation and civil rights. The Deep South under Jim Crow was a cruel “sham democracy” and an embarrassment to American self-regard as the standard-bearer of liberty. Hence a radical adjustment of the legal status of African-Americans was immediately necessary. The unanticipated result of the legislation, however, was a constitutional crisis that we have not only not gotten over, but one which we are not even aware is going on, some 50 or 60 years into it. According to Caldwell, northern whites imagined that the Civil Rights Act would essentially force southern whites to treat black Americans as well as they did—that is, with formal recognition of equality, theoretical protection of the law, and the ostensible right to eat in the same restaurants. Whites in general—and Caldwell cites ample polling data to support this contention—expected civil rights law to be brought into effect gradually, with minimal impact on their lives and communities.
Black Americans had a different conception of the legislation. They viewed it, legitimately, as revolutionary, as a promise of fundamental, material change. Whites, Caldwell argues, “saw themselves as making a grand and magnanimous gesture, cutting a heroic figure,” while many blacks, “and the most zealous among the civil rights activists of all races, saw whites as having entered a guilty plea in the court of history, and thus as repudiating the moral posturing on which the good name and good conscience of their constitutional republic had rested.”
Thus, America created a situation in which two constitutional regimes occupy the same space. The first one stresses equality of the individual before the law; the other demands that historical injustices be accounted for through affirmative action, racial preferences, and the imposition of judicial authority over broad areas of social and commercial life to ensure the erasure of inequality. The two constitutional regimes, Caldwell maintains, represent opposite and competing visions of society.
Caldwell describes how liberal activists have advanced the most ambitious reading of civil rights legislation through the courts. He points out that the now-ubiquitous practice of finding test cases and friendly judges before whom to bring such cases was, before the 1950s and Rosa Parks, considered barratry and widely disparaged. During the debates over civil rights legislation, opponents fretted that, if applied broadly, the law would even apply to the right of Mrs. Murphy, a hypothetical boarding-house operator, to choose who lives with her. Liberals dismissed the relevance of this slippery-slope argument, insisting that the government would not be interested in such trivialities. Yet with half a century’s hindsight, it seems clear that the slippery slope argument was valid.
The principle of disparate impact, for example, now governs public policy in almost every corner of American life, and where it hasn’t yet penetrated, public-interest lawyers are busy preparing test cases. Federal courts have ruled that bakers can be compelled to bake cakes in celebration of ceremonies that violate their religious beliefs; the government sues localities that haven’t built enough housing that blacks have chosen to occupy. Federal judges have stayed President Trump from imposing restrictions on illegal entry to the country on grounds that the illegal entrants are racial minorities in America—though they have never been in America. From this perspective, arguments that affirmative action was designed to help the descendants of American slavery and not the children of recent immigrants from the Dominican Republic or Iran are beside the point. Eroding the undeserved “privilege” of whites is the organizing principle.
Engaging these issues in great depth, Caldwell traces the last 50 years of elite American obeisance to the new constitutional regime, even as tens of millions of American citizens remain devoted to the original one. The Age of Entitlement provides a sharp and powerful lens through which to understand contemporary American politics. Readers may agree or not with his interpretation, but few will see our current situation in the same way again.
Photo by Chip Somodevilla/Getty Images
City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).