…But progressives have begun to describe the country that existed before the 1960s as not just flawed but outright illegitimate—and Democrats are following their lead.
In this view, the civil rights movement wasn’t just a reform but a refounding. That is what makes the anointing of John Lewis as a “Founding Father” …so significant…
The real political legacy of the 1960s comes from the Civil Rights Act of 1964.
…The new law cut constitutional corners, constraining freedom of association, exposing criminal defendants to being retried for crimes of which they’d been acquitted, and drawing the federal government into the running of local elections. It opened the door to new kinds of lawsuits: The U.S. attorney general, for instance, could now file discrimination suits against local school districts. It imposed a degree of federal management on all institutions that received federal money. And it created a vast investigative infrastructure through the Equal Employment Opportunity Commission and various cabinet offices of civil rights.
Although ending segregation was the Act’s main selling point, its language was open-ended. Women could use it to sue for more access to executive positions. Immigrants could use it to sue for ballots in Spanish. Over time, the groups who could demand redress were expanded—this summer’s Bostock v. Clayton case brought gay and transgender people under its protection.
The grounds for going to court widened, too. In 1971, the Supreme Court’s Griggs decision held that an employer didn’t have to be racist to be found guilty of discrimination. In 1978, the Court’s Bakke decision made the freshly invented concept of “diversity” an obligation for college admissions officers and corporate human-resources departments. No one had voted for these things—but already civil-rights law was taking on the lineaments of a second constitution that could be used to overrule the first.
… The civil rights laws have given Democrats, as the party of “minorities” and women, a powerful tool for winning immediate victories without having to wait for an electoral verdict.
Mr. Obama was the first president to master this parallel political system. Whether or not civil rights had changed minds, it had shifted power—from voters and their representatives to regulators and judges. Politics became less a matter of what your programs are and more about whom you will appoint, whom you will prosecute, and whom you will subpoena. As he discreetly worked toward legalizing same-sex marriage, … he stacked the Justice Department with litigators, who worked with plaintiffs moving lawsuits toward the Supreme Court.
Democrats have come to understand, as Republicans have not, the two-headed constitutional order that is the product of the 1960s. They are the party of those to whom power was transferred by regulators and litigators: racial and sexual minorities, immigrants, women and government employees. Those Democrats who urge their party leaders to “reject identity politics” … would have them throw away their party’s raison d’être along with its mightiest political weapon.
Identity politics has been… the only politics on offer for most of the 21st century… But the new constitution, the constitution of court-conferred civil rights established in the 1960s, advances by leaps and bounds. The Democrats are that constitution’s party. ..
—Mr. Caldwell is a contributing editor at the Claremont Review of Books and the author of “The Age of Entitlement: America Since the Sixties” (Simon & Schuster).
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