Clashing Rights

The Age of Entitlement:
America Since the Sixties
by christopher caldwell
simon & schuster, 352 pages, $28

About halfway through his new book, ­Christopher Caldwell quotes John Stuart Mill on the relationship between diversity and democracy: “Free institutions are next to impossible in a country made up of different nationalities.” This sentiment haunts The Age of Entitlement. Ostensibly about “America Since the Sixties,” the book is really about rights—in particular, civil rights—and the national consequences of their expansion during the past sixty years in the context of deepening diversity. Race occupies center stage, particularly as the book reaches its concluding chapters. Yet Caldwell also shows how the civil rights movement of the 1960s set the “template” used by every group claiming rights in its wake: women, immigrants, gays and lesbians, transgendered persons. The outcome has not been the more perfect union promised by civil rights, but social inequality, political polarization, and a domineering state.

Caldwell’s central thesis is straightforward: The United States is beset by rival political forces loyal to rival constitutions. The “de jure” “Constitution of 1788,” ordered toward liberty, is in conflict with the “de facto” “Constitution of 1964,” ordered toward equality. The supporters of “freedom of association,” the “master freedom,” clash incessantly with the backers of “affirmative action and political correctness,” the “twin pillars of the second constitution.” This struggle is not simply ideological. It divides Americans along lines of class, sex, marital status, sexual orientation, and, most dangerously, race. Caldwell sees the Constitution of 1788 championed by a Republican party organized around a straight, white male icon of the working and middle classes. Across the battlements stands the Democratic party, its rainbow coalition of professional-managerial class whites and racial minorities backing the Constitution of 1964. Between them is a no-man’s-land, a political waste in which all must “choose between these two orders.” The parties are locked in mortal combat, and only one can prevail.

Early reviews highlight the book’s bleak emotional landscape. The Age of Entitlement is said to exude “resentment,” “despair,” “gloom,” even a “Flight 93 mindset.” It is true that Caldwell offers no positive argument in the book. He makes little effort even to defend the “first” constitution, reserving his firepower for condemnations of the “second.” But The Age of Entitlement has many strengths, which those familiar with Caldwell’s writing will recognize and welcome. His wit and rhetorical flair remain as sharp as ever, such as when he observes that America’s first black president “was the descendant of American slave owners but not of American slaves.” He observes that a regime of civil rights and diversity continually expands judicial and bureaucratic power, and thus the power of elites who occupy those positions. He notes with insight the failure of American whites in the 1960s to foresee the radical implications of civil rights legislation, just as they failed to foresee the radical implications of the Immigration and Nationality Act of 1965, which dramatically changed the country’s demography. He rightly observes that Martin Luther King Jr. was more extreme than current hagiography recollects. He reveals the irony that civil rights promised to end race as a legal category and close the door on the shame of slavery and Jim Crow but instead entrenched racial categories and racial shame. He accurately sees that progressives have succeeded in turning the country’s elite discourse into a constant Vergangenheitsbewältigung (“coming to terms with the past”) little different from Germany’s never-ending soul-searching (and soul-scourging) reflection on its Nazi period.

Yet the book has important weaknesses. Caldwell tends to blame everything in the ­conservative hall of horrors on a single cause. “The civil rights movement . . . became the model for overthrowing every tradition in American life,” Caldwell insists. He blames Roe v. Wade on “the new constitutional possibilities in the Civil Rights Act” rather than on the more relevant 1965 Supreme Court case Griswold v. Connecticut. He finds the cause of the sky-high federal deficits of the Reagan era in civil rights spending commitments rather than in military buildup, tax cuts, automatic spending related to the 1981–82 recession, and punishingly high real interest rates. He sees corporate and university wokeness motivated by a fear of civil rights lawsuits rather than as an ideological takeover by true ­believers. Most dubiously, he blames the 2007–08 financial crisis on ­federal fair housing policies while ­largely ignoring the culpability of ­private finance.

At the heart of his argument is a great irony. Caldwell condemns the expansion of rights he calls the “Constitution of 1964” by, of all things, appealing to rights. Though it may appear that Caldwell opposes what Mary Ann Glendon identified nearly thirty years ago as Americans’ ­unhealthy postwar addiction to “rights talk,” the book assumes the supremacy of rights. Civil rights are so dangerous in Caldwell’s view because they contradict the right to free association, “the master freedom” that lies at the heart of the “first” constitution and “without which political freedom cannot be effectively exercised.” Thus the argument is that America suffers not from an excess of rights per se, but from an excess of the wrong kind of rights. Human rights (bad) under the label “civil rights” have bulldozed the true civil rights (good). One does not find anywhere in the pages of The Age of Entitlement alternative languages of civic virtue or solidarity. One finds instead a classical liberal—even ­libertarian—commitment to individual rights.

The book abounds with libertarian sympathies. Caldwell defends balancing the federal budget as a good in itself. He praises a decline in federal spending as a percentage of GDP as self-evidently desirable. His overriding concern is the expansion of “government.” His arguments against civil rights echo those made by Friedrich Hayek and Milton Friedman in an earlier age. He condemns behavioral economists and their desire to engineer our “choice architecture” by evoking John Stuart Mill’s harm principle. For those looking to break free of exhausted liberal formulas, this is not the way forward.

Recall Caldwell’s earlier appeal to John Stuart Mill on the possibility of multicultural democracy. Here is the Mill quote in its larger context:

Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist. The influences which form opinions and decide political acts, are different in different sections of the ­country. . . . The same incidents, the same acts, the same system of government, affect them in different ways; and each fears more injury to itself from the other nationalities, than from the common arbiter, the state. Their mutual antipathies are generally much stronger than jealousy of the government. That any one of them feels aggrieved by the policy of the common ruler, is sufficient to determine another to support that policy. Even if all are aggrieved, none feel that they can rely on the others for fidelity in a joint resistance; the strength of none is sufficient to resist alone, and each may reasonably think that it consults its own advantage most by bidding for the favor of the government against the rest.

This sounds precisely like Caldwell’s depiction of contemporary America: black and white cultural divergence, “separate language codes” based on race, a revival of “the Black Panther tendency,” pre-1964 white cultural institutions “obliterated,” and ultimately the “two different constitutions, two different eras of history, even two different technological platforms. And increasingly, two different racial groups.” And just as Mill would expect, amid it all, state power grows and grows.

Caldwell’s alternative to the civil rights regime of the “second” constitution is a repeal of civil rights legislation and a return to the “first” constitution: democracy leavened by the First Amendment. The great problem with this prescription, apart from its quixotic nature, is that Caldwell never comes to grips with the shortcomings of 1788 that gave rise to 1964 in the first place.

Caldwell observes, “The task that civil rights laws were meant to carry out—the top-down management of various ethnic, regional, and social groups—had always been the main task of empires.” In quoting Mill, Caldwell admits the deep challenge of reconciling democracy to multiculturalism. Yet he ultimately fails to face the implications of his own argument. Majority rule and a right of free assembly are no answers at all to the deep diversity of empire.

Perhaps mass immigration was a great error from the perspective of free institutions. Caldwell certainly offers a pointed critique of America’s post-1965 experience. But the country’s diversity precedes the Hart-Celler Act by centuries, and Caldwell never seriously wrestles with how to integrate the descendants of African slaves into a country he admits has always thought of itself as “a nation of transplanted Europeans.” He condemns political elites for embracing “an idea of Americans as something other than a people” without fully admitting that, prior to the 1960s, American blacks were offered at most a tenuous membership in that people.

A yearning for less bureaucratic and judicial rule and more self-government animates The Age of Entitlement. I have the same desire. In the balance between liberalism and democracy, Caldwell is correct to say that America today has too much of the former and too little of the latter. Yet the way to get more democracy is not through more rights talk. It is instead through recovering (and inventing anew) an alternative vision of responsibility and sociality. Only with such a vision can we cultivate the fellow-feeling that is necessary for democracy.

At the same time, Americans must accept that, in a large and diverse country such as ours, limits to fellow-feeling are real. Barriers to the cultivation of a national “we” are not only—and in my view, not ­primarily—ethnic or racial. They are also regional, class-based, ideological, religious, and partisan. The American political center continues to fray and fail, the Internet enables us to live in information silos, educators teach radically incompatible versions of our supposedly common history (see “The 1619 Project”), and right and left alike interpret presidential elections as end-times battles. Rival communities call the state into service against one another, and bureaucratic and judicial elites construe their task less as reflecting the will of a demos and more as managing a fissiparous empire. No wonder the state grows ever larger, ever stronger.

The challenges of reconciling deep diversity with political freedom have been met in other times and places, and there is no reason Americans cannot meet them in the twenty-first century. But it may take transformations more dramatic than we are yet willing to contemplate. During a period of deep diversity in Dutch politics, free institutions coexisted with multiculturalism through the system of “pillarization” in which Catholics, Calvinists, socialists, and liberals lived in distinct state-recognized and state-supported communities (though liberals ­objected that, as individualists, they didn’t form a community at all) while being allotted proportional representation in “national” institutions. Switzerland still combines its own form of consociationalism with referenda-based direct democracy and a far-reaching federalism. ­Canada deals with deep diversity through a system of asymmetric federalism in which it grants Quebec special recognition and powers. The United States has its own rich history of federalism to rediscover and reinvigorate. Our limited forays into legal pluralism, such as tribal sovereignty or covenant marriage law, could become models rather than oddities. 

Our ultimate political goals should be civil order, the protection of human life, the promotion of the family, human dignity (including but not limited to freedom), the long-run survival of communities (including but not limited to environmental sustainability), and ultimately the common good. The means of achieving these are matters of prudence and political strategy. Even political scale and institutional design should be on the agenda. A liberal system of clashing rights, however, is unlikely to hold any promise for the deeply diverse country America has become.

Darel E. Paul is professor of political science at Williams College and author of From Tolerance to Equality: How Elites Brought America to Same-Sex Marriage.