by
M. Richard Maxson
More and more areas of American life have been withdrawn from voters’ democratic control and delivered up to the bureaucratic and judicial emergency mechanisms of civil rights law. The law gave bureaucrats and judges emergency powers to override the normal constitutional order, bypassing democracy. Civil rights law has become a second constitution, with powers that can be used to override the Constitution of 1787.
The Civil Rights Act has become a second constitution. It came to dominate—and even overrule—legislation that had nothing to do with it. It The most traumatic example of this was the Immigration Reform and Control Act of 1986. This legislation was supposed to be the grand compromise on which our modern immigration policy would be built. On the one hand, about three million illegal immigrants who had mostly come north from Mexico would be given citizenship. On the other hand, draconian laws would ensure that the amnesty would not be an incentive to future migrants, and that illegal immigration would never get out of control again. So there were harsh “employer sanctions” for anyone who hired a non-citizen. But once the law passed, what happened? Illegal immigrants got their amnesty. But the penalties on illegal hiring turned out to be fake—because, to simplify just a bit, asking an employee who “looks Mexican” where he was born or about his citizenship status was held to be a violation of his civil rights. Civil rights law had made it impossible for Americans to get what they’d voted for through their representatives, leading to decades of political strife over immigration policy that continues to this day.
The Civil Rights Act also created groups, many of them not even envisioned in the original legislation and they got the hang of using civil rights law. Immigrant advocates, for instance: Americans never voted for bilingual education, but when the Supreme Court upheld the idea in 1974, rule writers in the offices of civil rights simply established it, and it exists to this day. These policies, qua policies, have their defenders and their detractors. The important thing for our purposes is how they were established and enforced.
As civil rights laws have been extended by analogy into other areas of American life, the imputation of moral non-personhood has been aimed at a growing number of people who have committed no sin more grievous than believing the same things they did two years ago, and therefore standing in the way of the progressive juggernaut. Americans are not to be permitted to advance their knowledge by discussing the issue in public or to work out their differences at the ballot box. In the United States, as our way of governing has evolved since 1964, emergencies are declared on a moral basis: people are suffering; their newly discovered rights are being denied. America can’t wait anymore for the ordinary democratic process to take its course. To these people, the other party is a party of bigots.
Say you’re a person who goes to church, and your seven-year-old son is being taught about “gender fluidity” in first grade. There is no avenue for you to complain about this. You’ll be called a bigot at the very least. In fact, although you’re not a lawyer, you have a vague sense that you might get fired from your job, or fined, or that something else bad will happen. You also feel that this business has something to do with gay rights. “Sorry,” you ask, “when did I vote for this?” You begin to suspect that taking your voice away from you and taking your vote away from you is the main goal of these rights movements. To these people, the other party is a party of totalitarians.
That’s our current party system: the bigots versus the totalitarians. If either of these constitutions were totally devoid of merit, we wouldn’t have a problem. We could be confident that the wiser of the two would win out in the end. But each of our two constitutions contains, for its adherents, a great deal worth defending to the bitter end. And unfortunately, each constitution must increasingly defend itself against the other.
When this legislation was being advanced one of the common sayings of activists was: “The sky didn’t fall.” They were right in the short term. But I think they forgot how delicate a system a democratic Constitutional Republic is, how difficult it is to get the formula right, and how hard it is to see when a government begins—slowly, very slowly—to veer off course in a way that can take decades to become evident. TODAY - WE ARE OFF COURSE.
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