George Floyd and the Rise of the Rival Constitution
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George Floyd and the Rise of the Rival Constitution

Craig Trainor
Craig Trainor

On May 25th, 2020, a Minneapolis police officer subdued a suspected forger by placing his knee on the suspect’s neck for nine minutes and 29 seconds. The encounter was filmed and wildly disseminated. The suspect died as a result of several factors, including the officer’s use of excessive force. The officer was subsequently arrested, tried, and convicted of murder. By now, virtually every engaged American knows the story of George Floyd. Beyond the specific facts of the incident, history will place far greater emphasis on what transpired after his death.

The incident, along with constant broadcasting of that disturbing footage by the media, set off a firestorm of protests and riots and a national dialogue—monologue, really—about race and policing. When Christopher Caldwell wrote his penetrating history of the civil rights movement, The Age of Entitlement: America Since the Sixties, he probably did not imagine that, only four months after the book’s appearance, race would become the primary focus of cultural thought, political discourse, and public policy, consuming every major facet of American life, including sports, music, school curricula, police practices, corporate boardrooms, and Congress.

The New York Times took the opportunity to double-down on its discredited 1619 Project. Amazon Prime felt compelled to remind me that “Black Lives Matter” as I content-surfed. Corporations rushed to create vaguely defined diversity and inclusion officers. And the current Vice President of the United States was selected on the basis of her race (and sex) rather than any particular virtue or ability or even the pragmatic need for the ticket to carry her home state of California. Whatever one’s view of this regime, its successes have been extraordinary.

If one wants to understand the intellectual underpinnings of the reaction to Floyd’s death, then The Age of Entitlement is essential reading. Caldwell’s overarching narrative holds that modern America is governed by two fundamentally irreconcilable constitutions. The first is the actual Constitution—the one that preserves liberty through the structural protections of the separation of powers and federalism and the rights articulated in its first 10 amendments. The second constitution—what Caldwell calls the “rival constitution”—is a complex web of civil rights statutes, judicial claims, policies and regulations, bureaucracies, and a cultural attitude of entitlement upon which this power structure has been constructed and organized. This is less an extension of the Civil Rights Act of 1964 that ended de jure segregation based on race in public accommodations, and more the hardening of an “all-embracing ideology of diversity.”

As Caldwell explains:

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 the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks the traditional kind of legitimacy but commands the near-unanimous endorsement of judicial elites and civil educators and the passionate allegiance of those who received it as a liberation.

Reading The Age of Entitlement prior to May 25th, 2020, the existential dimension of Caldwell’s argument might have seemed alarmist and overwrought. Today, however, it is surely undeniable that the 2020 unrest—ignited by a single instance of police misconduct but inflamed by selective media coverage, COVID-19 lockdown boredom, BLM ideologues, the demagogic architect of the 1619 Project, and assorted left-wing activists and anarchists—was an outburst of political violence in the name of the rival constitution. For those who favor the actual Constitution (and I do), how we arrived at this moment matters, and Caldwell does an exceptional job of guiding us through the relevant markers of history.

Those reviewers who criticized The Age of Entitlement for being short on history miss the point. Caldwell’s historical analysis is limited, but that is, I suspect, by design. All roads lead to the Civil Rights Act of 1964, so the book primarily focuses on the episodes, attitudes, and motivations that birthed the Act, fueled its transformation from equal protection enforcer to racial preferences gatekeeper, and created its contemporary political and legal superstructure:

Civil rights transformed the country not just constitutionally but also culturally and demographically. In ways few people anticipated, it proved to be the mightiest instrument of domestic enforcement the country had ever seen. It can fairly be described as the largest undertaking of any kind in American history.

No serious person today would dispute the need for federal intervention to dismantle the racialized regime of the segregated South. And at the time, most Americans—black and white alike—who did not live in the Jim Crow South supported the 1964 Act and considered it necessary and just in its aims. They reflexively understood, as Caldwell contends, that “government-sponsored racial inequality was a contradiction of America’s constitutional principles and an affront to its Christian ones.” In his famous “I Have a Dream” speech, Martin Luther King, Jr., elucidated this contradiction when he appealed to “the architects of our republic [who] wrote the magnificent words of the Constitution and the Declaration of Independence ... that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.”

Nevertheless, using polling data from the '60s, Caldwell demonstrates that whites and blacks had divergent conceptions of what de-segregation and integration entailed. Whites “saw the race problem as something distant. It had to do only, or mainly, with the exotic culture of the South, where segregation was legal.” Non-Southern whites believed “racial harmony had arrived long ago,” so civil rights legislation needed only to end desegregation as a matter of law. With a stroke of the presidential pen, “a system of racial oppression so intricate and ingenious that it had taken three-and-a-half centuries to devise could be dismantled overnight—by sheer open-minded niceness, at no price in rights to anyone.” Non-Southern whites were naïve and failed to apprehend that, “in exchange for civil rights, they were going to have to surrender certain basic freedoms they had until then taken for granted”—primarily, freedom of association.

Blacks, on the other hand, understood intuitively that civil rights law was nothing short of regime change. Professor Alan David Freeman, a sociologist of race and to whose ideas The Age of Entitlement repeatedly returns, explained that, in a system of oppression, blacks were the “victims” and whites the “perpetrators.” They see the world differently:

Victims see racial discrimination as a system of corruption that burdens them in a variety of practical, measurable ways—with “lack of jobs, lack of money, lack of housing.” They are unlikely to view the system as repaired until those practical burdens are removed. Perpetrators, on the other hand, see an ethical failure on the part of society’s leadership and feel society will have done its duty as soon as most people are behaving ethically—speaking out against prejudice and refraining from acts of overt discrimination.

It’s not difficult to extrapolate the “structural” or “systemic” language that we hear so much of today from Freeman's victim-perpetrator paradigm. Within that construct, Caldwell argues, “the most zealous civil rights activists of all races, saw whites as having entered a guilty plea in the court of history, and thus as repudiating the moral posturing on which the good name and the good conscience of their constitutional republic had rested.” In the end, the “systems view” would prove to be more in sync with the regime change that civil rights law precipitated. In 2020, over 55 years after the 1964 Act’s passage, it would herald a fundamental reorientation of American society toward something more racialized, identitarian, redistributive, and borderless. And it would demand silence in the face of screams that whites should “shut up and listen,” bend the knee before BLM protestors, and pledge allyship to designated groups within an intersectional hierarchy of the oppressed.

By 2016, when Caldwell’s historical inquiry ends, the list of victims would include women, undifferentiated “people of color” (save for Asians who are considered something called “white adjacent”), legal immigrants, illegal aliens, the mentally ill, drug addicts, the disabled, homosexuals, transgender people, Muslims, the poor, and even criminals. This non-exhaustive list left only one group as perpetrators: white, heterosexual, Christian males. This monolithic villain would serve as the cause of all America’s problems, not only with respect to race but also the distribution of wealth, schools, equal justice, meritocracy, housing, law enforcement, and foreign affairs (framed invariably as capitalist conquests on behalf of racialized imperialism). This monolith only has crimes for which it must answer, rarely achievements worthy of celebration, save for the 1964 Act.

For two generations, Americans were exposed to the national victim-perpetrator historical narrative and eventually required to embrace it in accordance with the demands of those who occupy the commanding heights of the culture. It is no wonder, then, that debate would give way to broken windows. The 2020 riots were not merely the work of aggrieved minority militants; some of the most wanton acts of property destruction and performative nihilism were executed by young white malcontents pillaging under the banner of social justice.

The riots also resurrected an intellectual and political project over 30 years in the making that, until the post-Floyd “reckoning,” had found no serious constituency outside the precincts of the academy. In 1989, an obscure legal academic at UCLA’s law school named Kimberlé Crenshaw wrote a law journal article, to which she gave the suitably jargonistic title, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” Crenshaw described how race, sex, class, and other characteristics “intersect” and argued that black women (like Crenshaw) face discrimination that is neither exclusively racist nor sexist, but a combination of both. The result is multiple layers of manifest injustice to the victim classes.

Caldwell, however, offers his own “critical study” of intersectionality—“a philosophical-sounding term for the political strategy of bundling different minorities into a coalition.” The dynamic political force of aggrieved minorities “could benefit in some way from civil rights law,” and continue to divvy up the spoils by “rallying other non-white groups” to the cause. Or as one critical commentator put it, intersectionality takes “the form of sweeping denunciations of disliked beliefs, concepts, and social institutions” and “functions as a normative identification strategy to imbue the characteristics of racism, sexism, white supremacy, and other bigotries onto the oppositional target of the activist’s political agitation.”

Intersectionality is a foundational species of what is now loosely termed Critical Race Theory (CRT). According to a monograph by Professors Jean Stefancic and Richard Delgado, the chief interpreters of this theory, CRT is a “movement” and “collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power.” They stand in opposition to “traditional civil rights discourse, which stresses incrementalism and step-by-step progress,” favoring instead an approach that “questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.” Activists are “discontent[ed] with liberalism as a framework for addressing America’s racial problems.” The problem, in their view, is that “[m]any liberals believe in color blindness and neutral principles of constitutional law.” Their stated objections to the liberal order and neutral constitutional principles reveal the authoritarian impulse that animates CRT ideologues.

CRT integrates this illiberal instinct with a totalizing racial reductionism which holds that, in the United States, “racism is ordinary, not aberrational”—blacks and other people of color experience the indignities of racism every day. White supremacy is America’s default setting because it “serves important purposes, both psychic and material, for the dominant group.” Race, meanwhile, is a social construct that is exploited, manipulated, and, where expedient, retired for the benefit of the white power structure. Finally, CRT privileges the so-called “unique voice of color” that grants minorities “presumed competence to speak about race and racism” in a manner unavailable to their “white counterparts.” This essentialism, which evolved from feminist standpoint theory, is the reason one cannot recreationally browse a political Twitter thread without somewhere encountering the introductory clause, “As a woman of color...”

In practice, CRT adherents such as BLM view America and its primary political and social institutions as fundamentally corrupt, immoral, and irredeemable. National redemption is out of the question, but individual indulgences are purchased in post-Floyd America through performative displays of public self-flagellation: a craven police chief takes a knee to satisfy the demands of aggressive BLM activists surrounding him and a disturbed Twitter user denounces her “whiteness” and makes meaningless promises to her followers to “do better.” Indeed, in March of this year, a law school dean voluntarily stepped down before anyone had called for her resignation after she drew an ill-considered analogy during a faculty meeting. She then checked herself in for reeducation and counseling to uncover more of her own racism while pleading with her law school to appoint her replacement “as quickly as possible so that I can step aside as Dean even sooner.”

These spectacles are uncomfortable to watch, and they are becoming more common. Rather than incidental acts of political and moral cowardice brought about by an ephemeral “racial reckoning,” these are features of a new American order—a regime governed by the civil rights state, ideologically energized by an “all-embracing ideology of diversity,” the illiberal tenets of CRT, progressive orthodoxy, and statist antiracist doctrine.

The policy implications of the new regime are equally revolutionary. President Biden voiced support for a commission to examine reparations for black Americans—an idea even socialist Bernie Sanders would not endorse in 2019. Two COVID-19 relief bills that the Biden administration approved offered taxpayer funds to black and minority farmers and restauranteurs, excluding whites from receiving aid. This makes a certain sense under the victim-perpetrator paradigm of racial justice, but three federal courts have since found the policies unconstitutional because “the loan forgiveness program is based entirely on the race” of the applicant. One can at least find consolation in these judicial decisions.

In New York alone, a billion dollars has been removed from the NYPD’s budget following demands to “defund the police,” and America's major cities are now engulfed by a crime wave not seen since the early 1990s. While BLM hardliners stand ready to revolt should a black man be shot by a police officer—whether or not the use of force is justified under the circumstances—the movement’s leaders remain silent about the 100 people shot and 19 killed in Chicago over the 2021 July 4th weekend, almost all of whom were black men and children. This glaring discrepancy is largely ignored by people who know better. Neither the self-inflicted public shaming nor racialized policies at the highest level of American government would have materialized without decades of elite ratification of the rival constitution illuminated by Caldwell.

By no means as illuminating or convincing is Caldwell’s critique of President Reagan’s eight years in the White House. This includes the claim that “Reaganism shared certain of the counterculture’s deepest aspirations,” and that the President merely “tapped rather than embodied” conservatism. Caldwell complains that Reagan “changed the country’s political mood for a while, but left its structures untouched.” [Emphasis Caldwell's.] According to this view, Reagan did little to dismantle the civil rights and welfare state that defined post-Great Society America, but instead used debt to permit “Americans to live under two social orders, two constitutional orders, at the same time.”

The Reagan faithful may be tempted to dismiss this criticism as part of a new revisionist history on the Right—as recently as the 2012 presidential primary season, every Republican candidate pledged fidelity to Reagan’s philosophy at his eponymous library in Santa Barbara. Today, however, one hears some conservatives deride “Zombie Reaganism,” tax cuts, and even ending the Cold War as they seek to move toward a new agenda focused on workers, trade, and regulating big tech.

Caldwell places too much power in the executive branch. While castigating Reagan for not doing more to slow the growth of Pell Grants is fine, he elides the caveat that the president—any president—is constrained by two other branches of government. Reagan governed with a Democratic majority in the House, which had neither the political appetite nor the ideological commitment to take on the civil rights and entitlement machine that Caldwell describes. Similarly, the federal courts were populated by judges reared in the robust injunctive mechanisms of the 1964 Act. During that era, judicial incentives, the legal academy, and the establishment rewarded more judicial forays into the political process, not fewer. Prudence, that Burkean virtue of statesmanship, generally compels serious men to emphasize what can be practically accomplished rather than pursuit of ideological maximalism.

Caldwell also ignores the coherent race-neutral jurisprudence of Reagan’s attorney general, Edwin Meese, and his top civil rights lawyer, William Bradford Reynolds. Reynolds, who served as the Justice Department’s Assistant Attorney General for the Civil Rights Division for the entirety of the Reagan presidency, worked tirelessly—if not always successfully—to rein in the civil rights apparatus that Caldwell indicts. Reagan hired Reynolds consistent with his promise to appoint officials who would carry out his policies of “non-discrimination.” As chief of the Civil Rights Division, Reynolds pledged to dedicate his office “to the principled path of color-blindness, where the right to be free from government-imposed discrimination (no matter how benign the motive) inheres in all individuals.” His philosophical commitments were manifest: “If history taught us any lesson at all, it is that the use of race to justify treating individuals differently—whether they be black or white—can never be legitimate. Regrettably, we have too often disregarded that admonition, always with predictably dire consequences.”

Under the Meese-Reynolds approach, the Justice Department sought to severely limit the use of counterproductive school busing and racial preferences generally. Reynolds reoriented the Civil Rights Division to challenge what he called “the remedies of overreaction,” and to employ the 1964 Act to ensure “racial quotas in the workforce [and] the schoolroom” ended. One would be hard-pressed to find any daylight between Reynolds’s position and Caldwell’s in this respect. Given Caldwell’s erudition, range, and body of work, it is unlikely that this omission of directly relevant historical material was an oversight. The safer assumption is that the Reagan project to curtail the civil rights state undercuts the thrust of Caldwell’s primary critique. Ignoring unhelpful facts is an understandable impulse, but in a survey of the modern civil rights movement, the reader is owed this history.

Reviving the legacy of William Bradford Reynolds is for another day. The larger and more urgent matter—the rival constitution’s seemingly unstoppable conquest of American institutions—requires attention now. The Age of Entitlement vindicates the observation by Angelo M. Codevilla (Caldwell’s colleague at the Claremont Institute) that, in the name of opposing discrimination, the 1964 Act “became the little law that ate the Constitution.” Under the rival constitution, American elites in the post-Floyd moment have never wielded a greater sense of power to impose their doctrines of race and social justice, policing and criminal justice, and economic redistribution that prioritizes an intersectional order of the deserving.

The grand American pluralistic experiment has endured because it ensures that diverse peoples embrace the unifying and, at the time, radical idea announced in the Declaration of Independence: “...that all men are created equal.” Contrary to the contemporary platitude, it is not diversity that is our strength, but the American Creed animated by the Declaration’s equality principle and the Constitution’s guarantee thereof. In An American Dilemma, Swedish economist and sociologist Gunnar Myrdal observed, “Americans of all national origins, class, regions, creeds, and colors have something in common: a social ethos, a political creed. It is difficult to avoid the judgment that this ‘American Creed’ is the cement in the structure of this great and disparate nation.” The new racialist regime takes a jackhammer to that cement, rejecting the unifying principles of the American political, legal, and economic order. This arrangement cannot continue indefinitely.

Ultimately, Caldwell is light on solutions (or serious tradeoffs), short of repealing the 1964 Act, which he knows will not happen. But The Age of Entitlement’s value lies in its diagnosis of the problem. Concerned Americans can no longer afford denial. As they say in 12-step programs, acknowledging the problem is the first step toward recovery. With every unpunished riot, CRT curriculum victory, repressed opinion, abolished standardized test, elected progressive prosecutor, permissive criminal justice reform, woke army general, and discriminatory Biden administration policy, the new regime fortifies its position. What small or large event will trigger the constitutional crisis is anyone’s guess. But this much is plain: When that great constitutional conflict arises, the actual Constitution and the colorblind principles it encompasses must prevail.

American Politicsrace

Craig Trainor

Craig Trainor is a member of the New York Advisory Committee to the US Commission on Civil Rights and a former civil rights and criminal defense attorney in NYC.