Defenders of the Civil Rights Act are always at great pains to portray themselves as eminently reasonable, when they argue that the nondiscrimination principle reflects the best of intentions to create a fairer world. Civil rights law indeed seems, on the face of it, to stand for nothing more than giving everyone a fair chance to participate in education or employment. What could be wrong with allowing black students to attend schools that were previously restricted to whites only, or preventing employers from firing anyone based entirely on the color of his skin? Are these not supposed to be basic liberal ideals on which we all agree? On that basis, champions of the civil rights cause levelled accusations against Charlie Kirk, described by the New York Times as a “leading voice among a cohort of young conservative activists who emerged during the Trump era,” for being an “extremist,” because he had the temerity to criticize both Martin Luther King Jr and the Civil Rights Act. Mr. Kirk said:
“I have a very, very radical view on this, but I can defend it, and I’ve thought about it,” Kirk said at America Fest. “We made a huge mistake when we passed the Civil Rights Act in the 1960s.”
The implication, in referring to this view as “extreme,” is that it falls outside the range of political views found among reasonable people – that it is so beyond the pale, that the bona fides of anyone expressing such views must be seriously questioned. As the boundaries of acceptable political opinion grow increasingly tight, the view now seems to be widespread that surely everyone admires Martin Luther King Jr and his civil rights movement – everyone except “extremists.”
The first response to those who think criticizing civil rights legislation is “extremist” is to point out that in fact we do not “all agree” on egalitarian ideals, the centrality of identity politics in the project of constructing a “good democracy,” the quasi-religious belief that America is irredeemably racist, or any version of the progressive worldview. It is not “extremist” to disagree with progressives, who have established themselves as the gold standard of opinion and now regard all their ideological opponents as renegades.
Most political debates are attempts to address precisely these types of questions – how society should be ordered, what values should be safeguarded, and the appropriate role of the state. Different political parties express their views on the principles that should govern society, and participants in public debate may favor any of the contested perspectives. To suppose that conservatives and progressives “agree” on the egalitarian worldview, or that they share common views on the role of legislation in social engineering and race-craft, is to foreclose public debate, and ultimately to render political freedom nugatory. What would be the point of having different political parties if they already all agreed on what the government should be doing? Free societies have more than one political party precisely because we do not, in fact, all agree on these issues.
One might perhaps argue that today, in the age of the uniparty, there are some core issues on which both major parties do in fact agree. The civil rights regime is often depicted as one such issue, as many in the Republican Party join their Democratic counterparts in agreeing that diversity, equity, and inclusiveness schemes are a great idea as long as they are implemented “properly” and used to complement rather than undermine merit. Or so they claim. However, to understand the superficial and precarious nature of this apparent consensus on civil rights, we must examine the political context in which the Civil Rights Act arose.
In the 1960s, as today, there was little clarity on what exactly the law was intended to achieve. To the extent that there was any consensus, it was on the idea that Jim Crow laws were abhorrent and should be repealed. Put that way, it indeed seems to be a principle with which most people would agree. But, as Christopher Caldwell shows in his book “Age of Entitlement,” the law was never intended merely to repeal Jim Crow. Hot off the press, it rapidly became established as a blueprint for the progressive vision of the ideal society – in essence, a new Constitution. David Gordon highlights this point in his review, addressing Caldwell’s argument that the Civil Rights Act functions in reality as a de facto constitution; it is “a rival constitution, with which the original one was frequently incompatible—and the incompatibility would worsen as the civil rights regime was built out.” As observed by Helen Andrews in her review, Caldwell argued that the Civil Rights Act not only functions as a rival constitution, but one which has an almost revered status:
One of the most astute observers of contemporary politics, Caldwell argues that the United States now has two constitutions. The first is the one on the books. The second arose in the 1960s and replaced the old liberties with new, incompatible ones based on group identities. “Much of what we have called ‘polarization’ or ‘incivility’ in recent years is something more grave,” he writes. “[I]t is the disagreement over which of the two constitutions shall prevail.” More bracing still, he puts the blame for this crisis on the most sacred totem in American politics: our civil rights legislation.
That polarization and incivility has now resulted in a situation where some people consider it reasonable to respond with violence to anyone adjudged by themselves to have uttered “hateful words.” As observed in the New York Times tribute to Charlie Kirk, this type of violence in political dispute is a world of horrors for everyone, regardless of their political opinions:
… there is no world in which political violence escalates but is contained to just your foes. Even if that were possible, it would still be a world of horrors, a society that had collapsed into the most irreversible form of freedom … it is supposed to be an argument, not a war; it is supposed to be won with words, not ended with bullets.
