How the 1964 Civil Rights Act made group rights inevitable
(A revised and expanded version of the below article is posted here, and is also permanently posted in the sidebar.)
A year or two ago, I happened to read for the first time the text of Hubert Humphrey’s famous “I’ll eat the paper it’s written on” promise that he made on the Senate floor concerning the employment provisions of the 1964 Civil Rights Act:
It the Senator can find in Title VII … any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there.I was struck by this because I had always thought that Humphrey had said something like: “If this bill brings about quotas, I will eat it.” Instead, he had said: “If this bill contains language mandating quotas, I will eat it.”
Of course the bill didn’t contain language calling for quotas, and it even had a proviso stating that the bill could not be interpreted as requiring preferences. So Humphrey’s big promise, which conservatives lay so much stress on, was meaningless. The question was not whether the bill had language mandating quotas, but whether the bill, regardless of its language, would in fact lead to quotas. And indeed it did. Almost immediately after the passage of the ‘64 Act, the Equal Employment Opportunity Commission (EEOC), which had been created by the Act, put through regulations declaring that racial discrimination was proved by a lack of racial proportionality in an employer’s work force, which meant that the only way for a company to prove it wasn’t discriminating was to engage in racially proportional hiring. Mainstream conservatives who call for a “return to the original principles of the 1964 Act” never seem to ask themselves why this perversion of the Act occurred, and occurred so quickly.
As I’ve argued elsewhere, the answer is that, at bottom, the Civil Rights movement was not about attaining a universal equality of rights for all people as individuals; it was about advancing the condition of black people. Equality of rights was seen as a means toward that end. When the equal rights idea had taken blacks as far as it could take them, it was immediately abandoned, and other, purportedly more effective means were adopted instead, particularly racial quotas.
Civil-rights conservatives argue that the proper, individual-rights meaning of the Act should have been enforced from the start, regardless of the pressures to change it into a group-rights law. But the question these conservatives never seem to ask themselves is, who was going to enforce it? America’s white majority? But the white majority had just canceled out its own moral authority, indeed its very existence as a majority, in the very act of passing the bill. The Act said that America consisted of nothing but individuals possessing equal rights, which in turn meant that the historical white majority character of the country could no longer be seen as a legitimate value or as playing any role in the society, as it had through our entire history up to that point. Second, in passing the Act, white America in effect admitted that it was responsible and guilty for black inferiority. Having confessed to these historic sins, were those same whites now going to have the will to stand in the way of further measures seen as urgently necessary to raise blacks’ condition? The answer is clear in the historical record: they did not have the will.
Once the Act was passed, America’s goose was cooked because the American majority by passing it had said that their history as the majority people of this country was morally illegitimate. As a result, they lost the moral self-confidence to lead. Losing the ability to lead meant, among other things, losing the ability to uphold the written provisions of laws against powerful racial and political interests that wanted them changed.
As I’ve said, virtually as soon as the ‘64 Act was passed, racial preferences were instituted. What this means is that there never was an America in which the equality-of-rights regime that conservatives hark back to actually existed. They keep acting as though there was some Golden Age of race-blind individual rights that was betrayed and that we must return to. But that Golden Age never existed. It is, literally, a dream. Not only did it not exist, but it cannot exist. It cannot exist because in an America that has an equality-of-individual-rights regime and doesn’t have a morally legitimate white majority, there will be no one with the moral authority to resist the black minority’s wrongful demand that equality of individual rights be changed into equality of group results.
In sum, the 1964 Act did two things: it delegitimized the white majority so that it could no longer lead, and it turned black America into a sacred victim whose demands for group privilege could not in good conscience be opposed.
It did yet another thing. When senators expressed concerns that the Bill could lead to racial quotas, those concerns were real; that’s why Humphrey made his forceful assurance that the bill contained no such language. But Humphrey’s assurance implied that a demand for racial group preferences would indeed arise as a result of this bill and that therefore the bill had to have rock-solid language to stop that. Humphrey’s promise was an admission that the bill would produce a demand for preferences that would have to be withstood. Therefore someone would have to protect the law against those who wanted to bend it into a different shape. But who would that protector be? It couldn’t be the black community; that was assumed. It couldn’t be the civil rights advocates; that was assumed. The enforcers would have to be whites who were not part of the civil rights movement. But, once again, the white majority had been discredited and disempowered by its admission of historic racial guilt.
So, though the language of the bill forbad preferences, the bill nevertheless produced on one side a self-interested and aggrieved class that was expected to demand preferences, while it eliminated on the other side the very class that was being tacitly depended on to resist the granting of such group preferences and to enforce the bill as written
Those are the group-power dynamics that underlay the devolution of civil rights from the prohibition of discrimination to the bestowal of group privileges. Yet the civil-rights conservatives, believing only in individual rights and in the irrelevance of race, keep treating the issue as a matter of abstract principle. Over all these years leading up to the catastrophe of Grutter v. Bollinger, they seemed to believe that if they just kept invoking the principle, the principle, as though it were some independent entity, would revive itself and become once again the law of the land. The reality—which modern conservatives are incapable of understanding because they live in a world of abstractions—is that in order for a society to maintain its principles, it has to have actual people who are ready, willing, and able to enforce those principles. An America whose historic white majority has been shorn of its moral legitimacy lacks such people.