Last Thursday, July 2, marked the fifty-sixth anniversary of President Lyndon Johnson’s signing of the Civil Rights Act of 1964 (CRA). Hailed as “an idea whose time had come,” the law appeared to be an attempt by white Americans — some of whom had had never met a black person — to make amends to black Americans for years of second-class treatment. In a political if not a legal sense, the law seemed at the time to be such a meager and merited concession that people outside the South often couldn’t understand what all the fuss was about. Wasn’t it just about America living up to its founding principles?
What Americans of the early 1960s wanted most was a return to relative tranquility, something that had been in short supply since the 1954 Brown v. Board of Education decision. Most Americans believed that this bill would acknowledge and assuage black Americans’ grievances, with only a small and temporary cost paid in terms of liberty due to changes in administering the law. Black Americans, it was hoped, would repay the country with graceful integration. In short, the CRA would solve the problem — at which point Americans could go back to watching “Bonanza.”
None of that has happened.
With the benefit of hindsight it’s clear that the bargain made on that July day was a rotten deal for almost everyone involved, including many blacks — though not those few blacks who earn their living doing civil rights litigation. The law has been very good to them. Besides being more than most Americans had bargained for, the measures also proved to be both permanent and insufficient to satisfy the need of the self-perpetuating “Civil Rights” establishment (which little by little evolved into the “Civil Wrongs” establishment) to grow and consume.
Two weeks after the bill became law, an off-duty New York cop shot and killed a black 15-year old named James Powell who he claimed had been coming at him with a knife. Harlem quickly went up in flames followed by Rochester, Philadelphia, and Jersey City. To many Americans, this was mystifying. Hadn’t the new law settled old scores?
The obvious explanation is that the riots that followed occurred not despite the CRA but because of it. The government had sued for peace by rolling over and showing its soft underbelly.
And so the riots continued throughout the 1960s, with each subsequent cluster of riots met with an ever-increasing list of wealth-transferring government programs. Leaving aside for a moment the dishonor and immorality of paying people not to riot, is it even effective? The decades of history that separate us from that time have shown that dumping money on the inner city has only provided a perverse incentive to repeat the behavior.
Just days after LBJ signed the equally unconstitutional Voting Rights Act of 1965, a group of disaffected locals burnt down Watts, which was at the time a predominantly black section of Los Angeles. In 1966 and 1967, while the Johnson administration was implementing its “War on Poverty” boondoggle, a similar fate befell Chicago, Detroit, and Newark. After the assassination of Martin Luther King almost the entire urban landscape went up in flames. In response, Congress enacted yet another unconstitutional law known as the Fair Housing Act. Two years later, black rioters destroyed Augusta, Ga.
And so the cycle continues into the third decade of the twenty-first century. Rioting begets concessions which beget more rioting.
Besides the monetary cost of the Civil Wrongs Movement, there has been an even steeper price paid in terms of lost freedoms. As journalist and author Christopher Caldwell writes in “The Age of Entitlement: America Since the Sixties”: “What the reforms aspired and failed to do — produce ‘harmony’ between the races and peace between the sexes — may have been beyond the power of any government reform to achieve. But the costs of civil rights were high. New inequalities arose. Fewer things were decided democratically. Free speech was oppressed.”
Most Americans over the age of thirty are aware, even if they won’t say it in polite company, that we used to be freer to speak, to believe, and to conduct business according to our own consciences. Our motives weren’t always under government surveillance, and we had far more freedom to engage in peaceful non-interference in the manner of the Colorado baker Jack Phillips. Our homes were our castles, and our private affairs were private.
Caldwell’s book, which I highly recommend, goes a long way toward explaining the revolution that America experienced during the heady years of Lyndon Johnson and Earl Warren. Nothing that has occurred since that time — not feminism, not Reaganomics, not the collapse of the housing market — can be understood without the Civil Rights Movement as a paradigm.
Caldwell argues that the revolution did not force the nation to live up to its founding principles but instead substituted a new Constitution for the old one. He writes:
The changes of the 1960s, with Civil Rights at their core, were not a major new element in the Constitution. They were a rival constitution, with which the original one was frequently incompatible — and the incompatibility would worsen as the civil rights regime was built out. Much of what we have called ‘polarization’ or ‘incivility’ in recent years is something more grave — it is the disagreement over which of the two constitutions shall prevail: the de jure constitution of 1788, with all of the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964. …
And indeed we must choose between these two constitutions.
Take, for example, the case of “Mrs. Murphy,” a fictional widow who featured prominently in the debates of 1964. Mrs. Murphy was used to illustrate a point about property rights and freedom of association, the two principles under attack by the CRA. Finding herself with several extra rooms in her home, Mrs. Murphy decides to supplement her limited income by renting them out. Should the government be allowed to second-guess — even to overrule — her decisions about who gets to live in her home?
“Of course not!” said the supporters of the CRA. Mrs. Murphy’s home, they explained, is sacrosanct in a way that a motel — a so-called “public accommodation” — is not. The bill, they said, would leave her constitutional right to property and to free association intact. It was apples and oranges.
But the two situations are actually not very different at all. Mrs. Murphy’s home and a motel are both private and that’s really all that matters.
Sadly, the Civil Wrongs Movement was not finished in 1964 and eventually Mrs. Murphy’s home would be invaded by the presence of an overbearing government, supposedly just there to regulate interstate commerce. In 1968, LBJ signed the Fair Housing Act (FHA) which did apply in a de facto manner to private homes. As it turned out, supporters of the CRA couldn’t resist sliding gleefully down the slippery slope they had guffawed at four years earlier.
The so-called “Mrs. Murphy exemption” now has so many holes in it that it resembles a moth-bitten sweater. The esteemed law firm Fox Rothschild explains the law fairly well on its website. Yes, Mrs. Murphy’s home is still her castle but…
She may not discriminate on the basis of race, no matter what. Also, even if race is not in question — and how does one prove that? — Mrs. Murphy is not entitled to her namesake exemption if she doesn’t live on the premises. Mrs. Murphy’s home must also have fewer than five rental units. Once she hits that arbitrary number, she loses her constitutional rights. She also may not advertise her preference for, say, a Lithuanian-American boarder. She is still permitted to have that condition in mind, she just can’t state her preference on Craig’s List which is a blatant violation of her free speech rights. She’s literally required to waste a lot of people’s time (including her own) by advertising the unit to people she knows she will turn away. Also, if she chooses to be represented by a real estate agent she loses her rights because, according to Fox Rothschild, the agent should be “aware that housing discrimination is against the law.” Except that it isn’t! Not when Mrs. Murphy follows all of the stupid and unconstitutional rules required to secure her carve-out.
In 2016, the Obama administration “interpreted” the FHA’s prohibition on racial discrimination to require landlords to rent to convicted felons too. This new wrinkle was basically inevitable from the moment we as a society decided that Mrs. Murphy was not the final arbiter of who gets to live on her property.
The Mrs. Murphy exception serves as a good example of the kind of dissembling that the Civil Wrongs Movement pursued in order to sell the American people a false bill of goods. Knowing full well that property rights and freedom of association were the true issue at hand — not bigotry — they set out to obscure them by tossing a sop to our constitutional rights as they had been traditionally (and rightly) understood for the first 200 years of our history.
Over time, as the exceptions to the exceptions that they carved out have grown more numerous, our liberty has become a pale facsimile of what it used to be. Our rights under the First, Tenth, Thirteenth and even the Fourteenth Amendments have had to give way to civil wrongs. Everything must yield to their movement which is why everything from pronouns to home mortgages is now a “civil rights issue.” We’ve come to the point where we no longer even ask if the new regime passes constitutional muster because we already know the answer: No, but so what? Civil Wrongs is a constitution unto itself.