“This is the beginning of the twenty-first century’s civil rights movement,” intoned the Reverend Al Sharpton, addressing a crowd of over twenty thousand people. “We’ve gone from plantations to penitentiaries … they have tried to create a criminal justice system that … targets our young black men … We’re going to change the federal laws … We’re going to the nation’s capital, just like Dr. King did a generation ago.” But right then they were in Jena, Louisiana: population three thousand on a typical day; population twenty-three thousand, including the Reverends Al Sharpton and Jesse Jackson and the California congresswoman Maxine Waters, on September 20, 2007.
The extra twenty thousand had arrived to protest the criminal charges brought against six black high school students who had been dubbed the Jena Six. According to the account widely circulated on blogs, websites, chain e-mails, and text messages, and finally picked up by the BBC and the Chicago Tribune, the town of Jena was a redneck paradise stuck in the Jim Crow era, where white students had established a “White Tree” under which no black student at the town’s only high school dared sit. The black students, consigned to nearby bleachers during school breaks, silently fumed until one brave student, new to town and innocent of the depth of Jena’s racism, asked at a school assembly whether he could sit under the White Tree. The school principal warily answered that every student was free to sit wherever he liked.
The next day three nooses hung from the White Tree, meant to illustrate the only way a black student would be allowed under its branches. Racial tensions went from simmering resentment to a rapid boil as whites threatened black students with improvised weapons at parties and once with a rifle in a parking lot. District Attorney Reed Walters addressed the students at Jena High School and threatened, “With the stroke of a pen I can make your life miserable,” staring pointedly at the black students. Meanwhile, the whites responsible for these altercations suffered slapped wrists at the most. Jena’s racial cauldron boiled over when a white student, Justin Barker, directed a racial insult to the group of black students who would become the Jena Six—talented football players with promising futures. One of the students snapped and attacked Barker; the others joined in or watched. Barker was knocked unconscious, but walked out of the hospital hours later with minor injuries and went to a party that evening. This time, law enforcement responded, not with slaps to the wrists, but with arrests and ultimately an attempted-murder charge. Prosecutor Walters charged Mychal Bell, who would become the public face of the Jena Six, as an adult: if convicted, he would spend much of his adult life behind bars.
The legend of the Jena Six was told and retold in instant messages tapped into BlackBerrys and iPhones on the fly, through bulk e-mail and hastily written blogs, each telling a bit more dramatic than the last. The story seemed straight out of history—or straight out of Hollywood—with its handsome and heroic black football- hero victims, its white rednecks seething with venom and hate, and the power-mad and racist prosecutor who needed only a Boss Hogg white suit and string tie from the costume department to complete the image, flaunting his power before the honest and beleaguered Negroes of Jena: With the stroke of a pen I can make your life miserable, boy. It was the perfect rebirth of the civil rights struggle—a stark rebuff to those who had, naively, claimed that race relations had improved in the decades since the Freedom Summers. “For those who have been under the illusion that changes have occurred, this is a wake-up call,” the Reverend Jesse Jackson told reporters.
But there was something a bit too dogged about this narrative and something slightly unseemly about the protests, as if people were almost excited to have an honest-to-goodness, genuine, unambiguous racial outrage, just like those they had read about in the history books: “This is the first time something like this has happened for our generation … You always heard about it from history books and relatives. This is a chance to experience it for ourselves,” one college student who marched on Jena enthused.1
The facts, however, refused to go retro: they were disconcertingly postmodern—multifaceted and ambiguous. The six young men who became the Jena Six weren’t beleaguered subalterns. They were minor celebrities—star football players in a town that was obsessed with its high school football team. Football jerseys sold out at the local markets, town businesses sponsored the team, and townsfolk—whether or not they had kids in high school—turned out in force for the Jena Giants games. Mychal Bell was repeatedly named player of the year by the local newspaper.
According to Jena’s defenders, Bell was a serial recidivist who had taken advantage of—and would ultimately suffer because of—his status as a local football hero and the leniency of the liberal juvenile justice system. Bell was the product of a broken home, with an absent father and a mother with a criminal arrest record. According to the African American sports columnist Jason Whitlock, Bell’s father “reentered his son’s life only after Bell faced attempted-murder charges.” Before that, “white people in the ‘racist’ town of Jena provided Bell with the support and protected his football career long before Jesse [Jackson], Al [Sharpton], Bell’s father and others took an interest in Mychal Bell.”2 Bell had been written up for disciplinary problems on a regular basis, and his grades had suffered badly in the year before the Jena Six assault. But even as his behavior careened dangerously toward chronic lawbreaking, Bell was never seriously punished. “You had the judge and DA at those ball games Friday night, clapping them on,” said Anlynne Hart, the mother of a young woman Bell had assaulted.3
Shortly after the Jena Six rally, The Christian Science Monitor published a story written by a journalist from The Jena Times titled “Media Myths About the Jena 6.”4 The story directly contradicted almost every element of the Jena-Six-as-civil-rights-violation narrative. According to the article, there was no whites-only tree at Jena High School. Students of all races sat under the tree, and the black student who asked at a school assembly if he could sit under the “White Tree” was making a joke. The “nooses” were not a threat to black students; meant to be lassos, they were an unrelated prank directed at white members of the rodeo team. The students who hung them were guilty only of a baleful ignorance: they didn’t know of the history of black lynching and were mortified when they learned how their prank had been interpreted. And they did not get off with a three-day suspension from school: they were sent to discipline court, where they underwent mental health evaluations, spent nine days in alternative school, and served two weeks of Saturday detention. “Media Myths” insisted that District Attorney Reed Walters did not threaten black students. His statement had been taken out of context. His comments were part of an address to the entire Jena High School student body. Walters decided to make a dramatic statement in order to get the attention of some students who were talking on their cell phones rather than listening. “With the stroke of a pen I can make your life miserable, so I want you to call me before you do something stupid,” Walters implored—less a threat than an admonishment that students turn to the law rather than to violence to resolve their conflicts.
A central complaint of the Jena Six protest was that law enforcement had treated blacks in Jena more harshly than whites. “Every time the white people did something … they dropped it, and every time the black people did something, they blew it out of proportion,” insisted one protester. “Media Myths” sought to undermine this claim. A reportedly all-white party from which one of the Jena Six—Robert Bailey—was barred because of his race, leading to an altercation, was actually a racially mixed party to which Bailey had not been invited. A highly publicized attack with a shotgun, for which a white man was not charged, began, according to “Media Myths,” with an attack by Bailey and two other black students and ended when the lone white man ran to retrieve the shotgun from his truck in self-defense. Most damning of all, the altercation that led to the criminal charges against the Jena Six was not, as was widely reported, a school-yard tussle blown out of proportion by a racist prosecutor. It was an ambush in which the Jena Six had lain in wait for their victim; blocked his exit from the school auditorium; hit him from behind, knocking him out; and kicked him repeatedly as he lay unconscious on the floor.
These contested facts and ambiguities didn’t matter to the protesters, because the Jena Six were more important as symbols of injustice than as flesh-and-blood victims of it. One could dispute the racism of Jena’s high school students, police, and prosecutor, but no one could deny the racially disproportionate effect of criminal prosecutions nationwide: according to the Justice Department, while one in one hundred Americans were incarcerated in 2006, one in nine black men between twenty and thirty-four years old was behind bars. The Jena Six symbolized this much larger injustice, just as the “White Tree” symbolized the enduring racial segregation of the nation’s public schools and neighborhoods, two of the most severe remaining legacies of America’s long and cruel racist history. “Free the Jena Six” became a rallying cry because “Stop Informal Segregation and Prosecutorial Overzealousness That Disproportionately Affect African Americans Here and Elsewhere” wouldn’t fit on a T-shirt or a placard.
Donations poured in from around the nation to defend the Jena Six. The rock legend David Bowie donated $10,000 to the NAACP’s Jena Six fund, which raised $20,000. The Color of Change, a netroots organization, raised over $200,000. Various organizations and individuals held fund-raisers and sold Jena Six merchandise, with promises to donate the proceeds, and untold thousands of dollars arrived directly in the mailboxes of the Jena Six themselves. By November, people were asking uncomfortable questions about what had happened to the roughly half a million dollars raised to defend the Jena Six. The blogosphere was abuzz with rumors that the parents of the Jena Six had purchased new luxury cars and jewelry; the parents refused to account for as much as $250,000 in accounts that they controlled.5 Pictures of Robert Bailey, one of the Jena Six, dressed in black gangster regalia—baggy sports jersey, gold jewelry, baseball cap, and shades—rolling on a bed littered with cash, his mouth stuffed with $100 bills, turned up on YouTube. Other members of the Jena Six, Carwin Jones and Bryant Purvis, were photographed mugging like rap musicians at the BET Hip-Hop Awards. As reports of misuse and embezzlement of the donations proliferated, Jena Six supporters squabbled among themselves. “There are definitely questions out there about the money,” admitted Alan Bean, the director of Friends of Justice, the group that first investigated the Jena Six prosecutions.6 These events fed into a now all-too-commonplace idea that civil rights claims had become a racket used by the unscrupulous to get money or other perks and advantages. For instance, referring to the photos of Robert Bailey, the conservative blogger Michelle Malkin quipped: “Some of the [Jena Six] defendants are literally rolling in race-hustling dough.”7
Unlike the blatant racism of the past, modern racial injustice often has multiple and indirect causes. This makes it a bad target for traditional civil rights activism, which spotlights dramatic instances of bigotry and specific perpetrators. Tellingly, the march on Jena was somewhat unfocused: the demonstrators moved between the courthouse, where Bell was tried for an offense no one denies he committed (the charge had been reduced to aggravated assault), and the site of the “White Tree,” which, with all-too-fitting symbolism, had already been cut down, eradicating the one tangible symbol of Jena’s racial tensions. As for the rallying cry “Free the Jena Six,” at best it relied on the notion that six athletic young men were justified in kicking their lone victim senseless because other people who shared his race committed offenses against other black students. This sort of racial vendetta is diametrically opposed to the message of social justice and cross-racial understanding that underlay the civil rights movement of the twentieth century. If the Jena Six demonstration marked the beginning of the twenty-first century’s civil rights movement, it was an inauspicious start, reflecting a loss of moral purpose, a blurred political focus, and a sadly compromised integrity.
How Have Rights Gone Wrong?
Since the 1960s, the ideas developed during the civil rights movement have dominated American race relations. Courts and governmental agencies enforce legal prohibitions against discrimination; private businesses and universities endeavor to achieve diversity, and individuals think about race relations in civil rights terms: we aspire to the ideal of “color blindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations, and the American civil rights movement has inspired other important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.
When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. Race discrimination in restaurants, theaters, and hotels was quickly and thoroughly eliminated by the civil rights legislation of the 1960s. Discrimination in employment—while still a problem—has been dramatically reduced and today is widely and roundly condemned. Public figures who make overtly bigoted statements typically suffer widespread contempt and often lose their jobs. As a result of these welcome developments, each successive generation is less bigoted than the preceding one. Barack Obama’s election to the presidency demonstrates that race is no longer the insuperable impediment it was in the recent past, and polls suggest that racial animus today is at an all-time low.
But today’s most serious social injustices aren’t caused by bias and bigotry. For instance, the worst racial injustices stem largely from segregation—a legacy of past racism but not by and large the result of ongoing discrimination—and the many disadvantages that follow from living in isolated, economically depressed, and crime-ridden neighborhoods. Civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, sometimes civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.
It’s tempting to insist that we just need more of the same—that we’ve only been too timid in enforcing civil rights laws or too conservative in interpreting them. For many people it seems obvious that civil rights are unambiguously good and more rights, applied to more groups in more circumstances, would be better. Civil rights are widely seen as an emblem of moral progress: societies that extend rights to their citizens are morally superior and culturally more advanced than those that do not, and every society will guarantee a larger number of rights as it matures. Americans are ashamed of our nation’s failure to extend civil rights to racial minorities and women in our recent past, and a growing number of Americans are ashamed of our failure to extend civil rights to gay men and lesbians today; similarly, one imagines, our children and grandchildren will be ashamed that we have failed to extend rights to correct a host of social injustices we can now only dimly perceive.
But today, civil rights do too much and not enough at the same time. Opportunists and special-interest lobbying groups have used civil rights laws to get an edge in competitive schools and job markets, demanding special privileges, a disproportionate share of public resources, and even cold hard cash as a matter of civil rights. Civil rights laws prohibiting discrimination have been pressed to perverse and illogical extremes: for instance, laws against sex discrimination outlaw ladies’ nights at singles bars, and one litigant even sued to stop Mother’s Day. Extremists on both the left and the right have hijacked civil rights, using them to push radical schemes despite democratic opposition, and in some cases even to reverse and undermine the social justice goals civil rights were supposed to achieve.
It’s not just that civil rights laws are abused or taken too far: some may be doing more harm than good. For instance, the Fourteenth Amendment to the Constitution was enacted after emancipation to ensure that newly freed slaves would have a chance at a decent and dignified life, and it was the most important constitutional guarantee of equality in the twentieth century, serving as the legal foundation of desegregation in 1954’s Brown v. Board of Education. But more recently, the Fourteenth Amendment guarantee of equal protection has stymied sensible, if controversial, efforts to correct racial inequality, in direct contravention of its historical purpose. Most dramatically, in 2007 the Fourteenth Amendment was used to block efforts to achieve racial integration in the public schools. Today the Fourteenth Amendment’s equal protection clause works against equality as often as it furthers it: gallows humor among civil rights lawyers is that its repeal might actually be cause for celebration.
Lawyers and judges deserve much of the blame for twisting and perverting the legacy of civil rights, but political activists aren’t any better. Today’s social protests are often more style than substance, adopting the look and feel of the historic demonstrations of the 1960s whether or not a mass demonstration fits the circumstances. Too often they are both shrill and misdirected, choosing symbolic targets that make for good press even when they aren’t good examples of injustice and demanding simplistic and often unworkable solutions to complex social problems. The Jena Six were held up as symbols of the larger problem of racial disparities in the criminal justice system. But as stark and as troubling as they are, these imbalances can’t be blamed on the kind of Jim Crow–style bigotry that the Jena Six narrative evoked. These disparities worsened dramatically in the decades following the civil rights revolution of the 1960s, but as you would expect, during that same period racial attitudes in society have dramatically improved according to every reliable sociological measure. Unless law enforcement is an island of worsening racism in an ocean of increasing tolerance, today’s racial disparities in criminal justice must have more complex causes. For example, civil rights activists justifiably point out that federal sentencing guidelines impose a much more severe penalty for possession of crack than for powder cocaine. Because blacks are more likely to use crack cocaine while whites favor powder, these unequal punishments for similar drugs have contributed to the racial imbalance in our nation’s prisons. But was racism behind the disparate penalties? The crack cocaine trade brought with it especially violent turf wars in poor inner-city neighborhoods. Black civic organizations in many cities joined a multiracial call for more assertive law enforcement. An especially harsh penalty for crack cocaine possession was an understandable, if flawed, response. This and other tough law-enforcement policies have caused a dramatic increase in the number of arrests and prosecutions of blacks—especially young black men. This is a gross injustice—the war on drugs has jailed thousands of nonviolent people but has done little to hinder the drug trade—but calling the racial disparity in arrest and incarceration a “new Jim Crow,” while rhetorically dramatic, is misleading and distracts attention from the underlying causes of racial inequality.
At the same time, civil rights litigation and activism don’t do enough to redress today’s most serious social injustices, many of which aren’t caused by overt prejudice or simple discrimination. Inner-city blacks are more isolated from, and less likely to succeed in, the prosperous American mainstream than they were in the 1970s. Joblessness among blacks without a high school education is higher than at any time in American history: in 2004, 72 percent of black men who didn’t finish high school were unemployed, and more than half of inner-city black men don’t finish high school. By the time they reach their mid-thirties, roughly 60 percent of these young men will have been incarcerated.8 Women still earn about seventy-five cents for every dollar men earn for comparable work.9 The unemployed elderly are more likely to stay that way than younger job seekers, because of a complex set of economic and institutional factors. The disabled still often lack access to jobs, education, and public buildings—things that most of us take for granted. Gay men and lesbians face widespread hostility and contempt. Despite over forty years of comprehensive civil rights enforcement, numerous new civil rights laws at the federal, state, and local levels extending entitlements to an increasing number of new groups, countless costly and acrimonious lawsuits, and the constant drumbeat of civil rights activism, these problems remain stubbornly entrenched.
We should extend new civil rights to some groups, such as gay men and lesbians, who suffer from prejudice that is often analogous to that suffered by racial minorities and women. But civil rights are a poor fit for many social problems, however dire they may be. For instance, the disabled must overcome many impediments to participate in public life and the job market, but most of those impediments have little to do with bias against them. As a result, laws prohibiting discrimination against the disabled have been, at best, an awkward and piecemeal solution to the problems that most disabled people face. At the same time, they have allowed a few aggressive claimants to demand personal advantages at public expense. Similarly, civil rights laws that prohibit discrimination on the basis of age have not significantly improved the employment prospects of elderly job seekers, but they have distorted the labor market to the benefit of an already privileged group of older workers—a result that few of the early supporters of those laws could have predicted and even fewer could defend.
Civil rights haven’t been a panacea for the illness of social inequality, but like a patient who pops even more pills when the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded, far outpacing the growth in civil litigation generally: in 1991 the federal courts heard about eighty-three hundred employment discrimination cases; in 2000 they heard over twenty-two thousand. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overused or overly aggressive civil rights regime can be as bad as an ineffectual one.
Rights go wrong when we lose sight of their highest purposes. Too many people think of rights only as entitlements to be exploited to the maximum extent possible, ignoring the civility that is indispensable to a responsible exercise of civil rights. Civil rights make sense only as part of a social contract of mutual respect and cooperation among citizens, where the rights of others and the common good are as important as personal entitlements. And many of today’s social injustices are not simple problems of bigotry, and they will not respond to shrill demands or yield to inflexible legal rules. In fact, rigid rules and self-righteous accusations often reinforce the problems. To address these issues, we need more flexible interventions, guided by good judgment, civility, and public-spiritedness. In order to live up to the legacy of the civil rights movement, we must both renew our commitment to civil rights, and move beyond them.
Rights in Recent History
Today’s civil rights are a product of struggles for racial justice that grew and matured throughout the twentieth century, and the social upheavals of the 1960s. The social movements of the 1960s challenged prejudices, social hierarchies, and repressive cultural norms in almost every part of American society. Racism, male chauvinism, sexual repression, geopolitical aggression, the Calvinist work ethic, institutional bureaucracy, the mass media, and organized religion all came under withering scrutiny and ferocious attack. The challenges presented by the civil rights movement, the antiwar movement, modern feminism, and what came to be known as the counterculture forced American society to become more inclusive, tolerant, informal, and nurturing. Conservative nostalgia notwithstanding, very few Americans today would wish to live in the society of the 1950s or in the society that would exist today had the social cataclysms of the 1960s not had their effect.
The civil rights that developed in the postwar decades reflected this history. A potent combination of constitutional interpretation and federal legislation dismantled the formal supports of Jim Crow racism. The emergent legal support for antiracism quickly inspired analogous civil rights claims on behalf of women, the disabled, the elderly, and gay men and lesbians. These rights were implemented, with various degrees of success, through judicial interpretation of constitutional principles, federal civil rights legislation, state laws, and local ordinances. Religious liberties were refigured to include nondogmatic and even nontheistic spiritual practices. And at the same time, the separation of church and state was more rigidly enforced to prohibit previously accepted practices, such as prayer in public schools. Sexual liberation and feminism inspired legal rights to contraception and abortion. The long, hot summers of the 1960s led to new rights protecting against police brutality.
But the social changes of the 1960s were not all for the better. The erosion of established, if unjust, hierarchies left people insecure and uncertain of their place in society. Malaise and ennui became widespread. Vague and unfocused paranoid resentment erupted into violence, in antisocial movements on both the left and the right such as the Weathermen, the Symbionese Liberation Army, and the neo-Nazis, and in psychologically demented individuals such as Charles Manson and San Francisco’s “Zodiac” serial murderer. The countercultural critiques of conventional morality, the work ethic, and bureaucracy easily became a justification for self-indulgence and aimless belligerence: the idealistic counterculture of the 1960s aged badly and became the self-righteous and narcissistic “Me Generation” of the 1970s. The decline of mainline organized religion left a void, which was filled by crackpot spiritual movements, exploitative cults, and charismatic charlatans. Widespread antiwar sentiment eroded the prestige of the military—one of the few institutions that could join Americans of all races and social classes in a collective national effort. Civil rights provided ballast to the cultural conservatism, conventional bigotry, and stifling social conformity of postwar America—the rebellious, erotic, and inclusive counterculture was a welcome alternative to the suburban Babbitt and the urban lonely crowd. But countercultural norms also amplified the quixotic radicalism, antisocial aggression, and self-indulgence that grew in American society as unprecedented affluence and mobility collided with widespread anomie and social dislocation.
Meanwhile, throughout the 1970s, 1980s, and 1990s, globalization and automation radically changed America’s labor market. Automated manufacturing and offshore labor replaced many secure and good-paying unionized jobs. The new postindustrial economy grew mainly at the high and low ends: polished, college-educated people could find lucrative work in finance, business, and the medical and legal professions. Everyone else scrambled for a dwindling number of good blue-collar jobs, and many were forced into low-wage, part-time, or seasonal work in a growing service sector. Most of these new jobs had less well-defined qualifications than the typical blue-collar job; instead of formal certification or verifiable proficiency, they required “people skills” and an amorphous “professionalism.” Layoffs became as common as the change in the seasons, and job insecurity was the norm except among civil servants, tenured educators, and federal judges. These changes coincided with the unraveling of the social safety net. As welfare benefits shrank or were limited during the 1980s and 1990s, long-term joblessness could leave one utterly destitute. Not coincidentally, “the homeless” became a household term as thousands of Americans sought shelter in doorways and under bridges.
Civil rights laws, once the refuge of the most marginal, exploited, and despised, became potential guarantors of job security for millions of formerly comfortable middle-class Americans. Employment discrimination laws effectively formed an incomplete patchwork of protection against wrongful termination: the growing list of prohibited forms of discrimination under federal, state, and local laws, combined with reverse-discrimination cases, meant that almost every employee had a potential civil rights claim. Consequently, civil rights litigation grew at an unexpected pace throughout the 1980s and 1990s: by 2000, employment discrimination cases occupied fully 10 percent of the federal civil docket.10
Courts have struggled to limit the growth of civil rights litigation; as a result, employment discrimination plaintiffs lose at trial more often than any other group of civil plaintiffs, and their relatively few victories are more likely than most to be reversed on appeal.11 As civil rights laws have been stretched thin to cover almost every type of unfairness, they are less able to bear the weight of the most severe social injustices: for instance, after forty years civil rights laws haven’t significantly improved job opportunities for unemployed racial minorities, elderly people, or the disabled. Pressed into more widespread service, civil rights law soon lost the once-commonsensical association with the most severe and socially destructive forms of social hierarchy and prejudice. And the more indiscriminate use of civil rights spread from employment to other areas of social and political conflict. Detached from historical context and specific social goals, civil rights were too often used to bypass both market discipline and the democratic process and advance almost any individual interest, political agenda, or partisan scheme.
Inspired by the stylistically tough activism of the Black Power movement, the cushier aesthetics of Me Generation self-actualization, and the romantic nationalism of the nineteenth century, multiculturalists sought to extend civil rights laws to “cultural difference” in the 1980s and 1990s. In its cruder iterations, legal multiculturalism held that racial groups were defined by their distinctive cultural norms and practices: for example, black culture comprised Ebonics, “colored people’s time,” hip-hop clothing styles, braided hairstyles, and dreadlocks. It seemed to follow that discrimination on the basis of these styles, affectations, and habits was as bad as discrimination on the basis of race. Legal multiculturalism drew on a strong psychotherapeutic strand in civil rights activism, which focused less on tangible economic or political injury than on self-esteem and dignity. Multiculturalists insisted that because minority cultural practices were essential to individual identity and self-worth, a society that favored dominant cultural norms and practices was not only narrow but unjust. Multiculturalists were among the first to grapple with the challenges of porous national borders, global mobility, and an ethnically diverse society, but the civil rights approach to these challenges supplied simplistic and formulaic answers to complex questions. The application of the civil rights model to “culture” treated contestable political conflicts over norms and morality and struggles over the distribution of resources as civil rights violations with perpetrators and victims. Although the legal multiculturalist project was largely unsuccessful in inspiring law reform, it reflected and reinforced the expansion of civil rights laws into domains better managed by the more mundane institutions of the market economy and popular politics.
Why Do Rights Go Wrong?
Rights occupy a special place in American culture and in the American legal system. A right is a distinctive type of legal, political, social, and moral claim. There’s a big difference between saying “I deserve this job” and “I have a right to this job” or between complaining “It’s not fair that I’m being prosecuted for such a minor offense” and “The prosecutor has violated my civil rights.” There’s also an important difference between a public policy that’s designed to improve the lot of women, racial minorities, or the disabled and a civil right to equal treatment. The distinctive features of rights are an important part of our culture and legal system: rights can provoke needed social change and prevent expedient capitulation to powerful agents of injustice and exploitation. But the distinctive features of rights also make them the wrong tool for many jobs. At their best, civil rights help bring people together as equals, in common projects and shared institutions. At worst, civil rights can hinder or undermine sound policy, fracture society into mutually antagonistic tribes, and encourage selfish and irresponsible individualism. They can even begin to undermine the egalitarian efforts they were designed to further.
Rights as a Secular Religion
Rights are a secular religion for many Americans. Like religious faith, they offer moral certainty and emphasize the importance of individual personality—an antidote to selfish nihilism and chilly materialism. This similarity is no accident: modern legal rights evolved from the natural rights tradition, which first derived rights from theological authority. The earliest and most powerful accounts of human rights are inseparable from religious faith: Thomas Paine defended the French Declaration of the Rights of Man as the codification of “a compact between God and Man … [that] cannot be changed, or any ways altered by any human laws or human authority”;12 and of course, the American Declaration of Independence begins with the confident observation that “all Men … are endowed by their Creator with certain unalienable Rights.” This close connection between rights and religion was obscured, but not broken, by the scientific revolution’s corrosive effect on theological certainties and the cultural liberalization and anomie that emboldened modern philosophers to write God’s obituary. The civil rights movement of the twentieth century was an indispensably religious movement: its most important and charismatic leaders were ministers; its anthems, hymns; its vernacular, gospels; its manifestos, sermons and scripture. Most of all, the tenacity and courage with which its adherents pursued justice must be credited to their faith in a power superior to that which they challenged.
But religion has a dark side: the same faith that inspires great deeds and unearthly devotion to a cause can also provoke unjustified certainty, inflexible conviction, the blind vindictiveness of the crusade, and an unexamined deference to all-too-earthly authorities. As a result, quasi-religious activists exploit the desperate faith of the most vulnerable black communities, using the legacy of the civil rights movement and the authority of the divine to enrich and aggrandize themselves at the expense of both civility and those they claim to represent. Civil rights have inspired some of the most important humanitarian efforts in modern history, such as the abolition of slavery, the struggle for women’s suffrage, and the dismantling of the Jim Crow racial hierarchy. But more complex and morally ambiguous social problems require a modesty, intellectual suppleness, and experimental pragmatism that rights—like religion—tend to discourage. Rights provoke undue faith in categorical thinking and simplistic “right answers,” but the vexing and persistent social justice problems of today demand context-specific analysis and a careful weighing of multiple options. When a conflict or problem is defined as a “matter of civil rights,” pragmatic virtues can come to took like moral faults: willingness to compromise becomes “selling out”; modesty about one’s position becomes a contemptible lack of faith; looking at the question from all sides becomes a type of apostasy. Civil rights thinking encourages the stiffening of backs and the clenching of fists—a good stance against spinelessness and cowardice, but the wrong posture when flexibility and openness are needed.
Rights Offer False Hope of Political Change Without Politics
Rights can correct discrete and specific social injustices by requiring specific people to do specific things: bigots can be ordered to eliminate discriminatory policies; lechers can be forbidden to extract sexual favors from their employees. But social problems that have multiple causes require far-reaching, complex, and cumbersome institutional reform and choices among controversial alternative policies. Rights offer no guidance for such comprehensive institutional reform; to the contrary, they seem to promise discrete improvements in equity and fairness without the need for holistic social change. In this sense, rights try to split the difference between revolutionary change and timid acquiescence in the status quo. This makes rights attractive to those who find many aspects of daily social and political life disagreeable, but fear or despair of achieving dramatic change. But with rare exceptions, rights cannot change deep-seated institutional and cultural injustices without changing the institutions and culture in which they are rooted. As a result, rights hold out the false hope of political change without the messiness and controversy of politics, yielding either disappointment when the anticipated change doesn’t occur or frustration when the discord of politics accompanies it.
Rights Encourage Moralizing at the Expense of Pragmatic Problem Solving
Americans are pragmatists by temperament: we excel at finding workable solutions to specific problems. We are also a nation of zealots prone to crusades, proselytizing, and moralistic condemnation. At its best, the civil rights movement harnessed the energy of moral outrage to pragmatic legal and policy reform. But sometimes moralism takes the reins and pulls us away from workable policies. When moralism overwhelms pragmatism, we often go to extremes, adopting punitive and ham-fisted measures that make matters worse. Contrast the ignoble experiment of Prohibition (and the failed war on drugs) with today’s more measured and nuanced approach to alcohol-related problems; or consider the abortion controversy, where rigid absolutism on both sides has led to a counterproductive stalemate that leaves many desperate pregnant women without viable options and results in preventable terminations of viable pregnancies.
Civil rights advocates, focused on culpable bigots, aggrieved victims, and violated entitlements, too often reject analyses that don’t satisfy righteous indignation and eschew potentially effective indirect solutions. For instance, when activists insist that racial imbalances in criminal justice are the equivalent of Jim Crow racism, they reinforce the conviction of the already converted but alienate well-meaning people sincerely concerned about crime; by contrast, a pragmatic approach might focus on the irrational and ineffective drug-sentencing laws responsible for much of the problem. Similarly, racial minorities and women are underrepresented in many jobs and professions, and there’s little doubt that discrimination and other subtler biases play a role, but it’s unfair to condemn an individual employer without specific proof of wrongdoing. A pragmatic approach would often suspend the moral judgment implicit in current civil rights claims and look to cooperative approaches and public policies that might increase diversity in segregated workplaces.
Rights Encourage Absolutism at the Expense of Common Sense
Rights against race discrimination were designed to reverse the effects of slavery and Jim Crow segregation. Rights against sex discrimination were created to break open bastions of male exclusivity and put the sexes on an equal footing in the modern economy. Rights to religious liberty were developed in response to bloody religious conflicts and ruthless religious persecution. These civil rights are designed to help build an integrated and harmonious society, and they still serve a vital purpose today. But legal rights can come unmoored from such laudable purposes. More so than other laws, rights are especially prone to drift away from their best practical purposes because they are expressed and understood in absolute terms. This allows opportunists to exploit rights for selfish and antisocial ends and leads the credulous to suspend good judgment and common sense for the sake of rigid and inflexible mandates. For instance, some activists insist that the right to be free from sex discrimination means that men and women must share public restrooms, and today the right to be free of race discrimination prevents employers from considering race in order to avoid discrimination.
Too often, today’s legal culture celebrates the most socially destructive and unreasonable demands. Like a group of drunken fraternity brothers competing to perform the most dangerous and outrageous stunt, lawyers, legal scholars, and civil rights activists strive to outdo each other in developing the most extreme and expansive interpretations of legal entitlements. Too many activists and lawyers attack unobjectionable customs and sensible practices that offend only the most expansive and uncompromising interpretation of the law. In defiance of the ancient prescription de minimis non curat lex (the law must not bother with trifles), they make a federal case of minor inconveniences and trivial inequities. They press for changes that will cost far more than they are worth, and they seek to transform carefully moderated regulations into burdensome and crippling mandates.
Rights Encourage Narcissism and Extremism
Over two hundred years ago the English philosopher Jeremy Bentham complained that rights were often little more than “bawling upon paper”—an especially uncompromising and shrill way of asserting a preference. He would find ample evidence for the complaint today. Extremist crusaders and radical zealots, having failed in the marketplace of ideas, press their unpopular social agendas in court. Belligerent crackpots, angry misfits, and resentful losers insist that their rights have been violated when they find themselves at odds with their neighbors and fellow citizens. Antisocial malcontents turn their personal gripes into a federal case if they can find a link—however tenuous—to a legal entitlement. The nation’s court dockets are cluttered with silly, trivial, and mean-spirited lawsuits based on ambiguous, perverse, or overbroad interpretations of civil rights. And even people without a remotely plausible legal argument find undeserved solace in newly contrived rights, which they imagine vindicate a growing number of unrealistic demands. Dubious civil rights claims span the ideological spectrum. Radical feminists, conservative activists, multiculturalists, pet owners, bicyclists, competitive students, and wealthy corporate executives all crowd the dockets of the nation’s courts and vie for the attention of the court of public opinion, recasting both debatable claims and patently unreasonable demands in terms of civil rights.
The legal culture of rights extremism is reinforced by popular culture. Self-help, personal growth, and self-actualization are as important to Americans today as redemption, virtue, and salvation were to our more religious ancestors. The resulting conflation of self-obsession with personal virtue breeds the solipsism and self-righteousness that inspire wrongheaded claims of right. The powerful and privileged complain of minor and ambiguous slights, and political hacks of all stripes exploit the legacy of the civil rights movement for partisan advantage. The rhetoric of civil rights has provided a convenient vehicle, if not an official apologia, for a culture of entitlement, self-obsession, and self-righteousness that warps popular politics and poisons popular culture. Today, a popular and legal culture of entitlement threatens both social harmony and material well-being. In the courts and on the streets, we all suffer when rights go wrong.
Civil Rights “Occupy the Field” of Social Justice
When a federal law is a comprehensive and exclusive approach to a problem, leaving no room for state or local legislation on the same issue, lawyers say it has “occupied the field.” Civil rights have effectively “occupied the field” of social justice, crowding out alternative ways of thinking and new solutions. Rights against discrimination on the basis of age, disability, sexual orientation, height, weight, and physical appearance followed hard on the heels of the right not to suffer race, sex, and religious discrimination created by the omnibus civil rights legislation of the 1960s. Today, it’s hard to think of a social cause that isn’t framed in terms of rights, and a growing number of social groups seek to define themselves as embattled or despised minorities in order to qualify for civil-rights-inspired public sympathy, if not formal legal entitlements. Civil rights are an important part of many social justice struggles, but they are subject to the law of diminishing returns: rights can offer limited improvements in a narrow set of circumstances, but the effectiveness of the civil rights approach diminishes and its costs increase as it is applied to more novel, complex, and elusive social problems. Those working for social justice all too often eschew the difficult and unpleasant task of popular persuasion, lured by the false hope of a shortcut by way of judicially mandated civil rights. And even policy reform pursued through the democratic process often takes the form of new civil rights. It’s now common to think of individual entitlements as the most effective way to attack social injustice. Few remember that when the Civil Rights Act was passed, enforcement by private individuals was a second-best compromise that the act’s strongest supporters feared would make the new law ineffectual. They were right to be afraid: the most disadvantaged victims of America’s long-lived racial hierarchy, trapped in poverty-stricken ghettos and quarantined in prisons, have enjoyed few of the benefits of civil rights legislation.
What we could call “rights consciousness” occupies a larger part of our culture than ever before. The rights to life, liberty, and the pursuit of happiness seem almost quaint in a field crowded with novel and ambitious new rights. International human rights, conceived as a response to torture and genocide, also aspire to guarantee a smorgasbord of substantive goods and social services, including housing, medical care, dignified employment, and cultural integrity. The Bill of Rights of the U.S. Constitution has inspired the Taxpayer Bill of Rights, the Airline Passenger Bill of Rights, the Consumer Bill of Rights (a telling reflection of our national priorities), and the Pizza Lover’s Bill of Rights (ditto). Each of these new rights is inspired by a laudable and important aspiration (with the possible exception of pizza). But is the language and logic of rights the best way to think through or address all of these concerns? And what does it say about public confidence in political institutions and our relationships with our fellow citizens that we pursue so many of our goals and imagine so much of our lives in terms of formal entitlements?
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In this book I’ll explain in detail how the civil rights tradition took such unexpected and destructive detours—and how we can get it back on course. In Chapters One through Four, I’ll look at four wrong turns in today’s civil rights thinking, and in Chapter Five, I’ll point a possible way back to the straight-and-narrow path toward social justice.
1. Civil rights are supposed to prevent—or at least counterbalance—the prejudices and discrimination that deny some people a fair chance for a good livelihood and a good life. The unpopular, the despised, and the unsuccessful need rights protecting them from an unsympathetic majority and an unforgiving economy. In a sense, civil rights invert the typical indicia of virtue and merit: social contempt and failure become virtues in the sense that they test society’s commitment to rights. For those who suffer contempt because of reflexive prejudice and who fail because of ill-considered social exclusion or exploitation, rights are invaluable and fragile guarantors of social justice. But rights also shelter the truly contemptible and reward those who deserve failure. Rights nurture some of the most antisocial and dysfunctional tendencies in our society, protecting them from the social and economic pressures that would otherwise discourage and contain them. And too often, people use rights to get an edge in the job market or other competitions for scarce resources. Rights go wrong when individuals or political pressure groups use them to bypass the democratic process or to undo the normal incentives and rewards of a market economy. Rather than a guarantee of basic fairness, rights can become an entitlement to advantage.
Chapter One will examine the growing number of such entitlements. How can we tell the difference between balancing the scales and putting a thumb on one side? The seriously disabled need special accommodation in order to participate in the mainstream of society, but people with loosely defined and mild learning disabilities have demanded and secured competitive advantages—such as extra time on academic tests and one-on-one tutoring in overtaxed public schools—that give them an edge in a zero-sum struggle for resources and prestige. Bias and unexamined customs make it hard for older people to find work, but age discrimination laws have become a windfall for well-paid older professionals and executives with secure employment while doing little to improve opportunities for jobless older people. In high-stakes competition for good schools, good jobs, and the good life, when is asking for a hand up a way of getting the upper hand?
2. The civil rights tradition encourages us to look at disputes through a lens that is designed to focus on discrimination. In fact, the legal and cultural stigma now attached to “discrimination” is so powerful that the very word is almost synonymous with bigotry. The focus on discrimination made sense in the context of Jim Crow, where racists exploited blacks and established a hierarchy of birth based on a rigid and formal distinction between the races. But today racial injustice is much more complex: formal race discrimination is rare, and the effort to shoehorn problems such as residential isolation, joblessness, incarceration, and a dysfunctional culture of poverty into the category of “discrimination” has made it harder to analyze and address these problems.
Chapter Two will make the case that civil rights shouldn’t always outlaw discriminating tastes. Emboldened by the early successes of the civil rights approach, lawyers, judges, and activists have tried to make a host of diverse and complex social problems fit the discrimination mold. Describing vexing and complex conflicts over values and resources as discrimination makes it harder for us to address them appropriately. Turning discrimination into a general term of opprobrium leads us to condemn reasonable distinctions based on salient facts. The obsession with discrimination went to self-consuming extremes when in 2009 the Supreme Court said it was illegal race discrimination to consider race in order to avoid discrimination. And civil rights have become so closely tied to discrimination, it seems to follow that anything that can’t be blamed on discrimination can’t be a civil rights issue.
3. Like a poorly trained guard dog, civil rights have a nasty tendency to turn against their wards, undermining the causes they were supposed to serve. It can be hard to get them back on leash because rights—unlike mundane public policies—are supposed to reflect timeless and immutable moral principles, rather than specific goals that can be revisited and revised in response to changing needs and conditions. And when courts remove contentious social questions from politics, they can short-circuit needed social dialogue and provoke backlash, hindering or stalling more important changes in attitudes and norms. This is why rights can be prime examples of the unintended consequences of the law.
Chapter Three will look at the unintended consequences of civil rights laws. The right to equal protection of the laws was originally established in the aftermath of the crimes of slavery and later evoked against Jim Crow segregation in Brown v. Board of Education. But a rigid civil rights approach to school desegregation provoked backlash. Worse, it established an inflexible absolutism that now prevents public school districts from pursing racial integration and undermines the attempts of Congress and the states to promote racial justice. Laws against sex harassment undermine sexist stereotypes and help women work alongside men as equals. But taken to extremes, they impede cordial relations between the sexes and put women on a protective pedestal, reinforcing Victorian-era notions of female vulnerability and frailty. Civil rights can protect vulnerable minorities from a tyranny of the majority and reverse the damage caused by bigotry. But, like radiation therapy, rights are strong medicine with unpredictable side effects, best used only when milder interventions prove ineffective.
4. As the civil rights movement recedes into the canon of American heroism, it inspires nostalgia for more profound and well-defined challenges and for galvanizing events around which to organize an increasingly fractured black community. As a result, many racial justice activists seek out and even invent racial crises or confrontations, which provide the “look and feel” of the civil rights movement—such as the Jena Six protest—but often without the moral clarity or practical aspirations. The language of civil rights was a comfortable fit for the worst of the excesses of the counterculture and the Me Generation: it wasn’t hard for narcissists to see almost any personal belief or selfish desire as sufficiently profound to deserve civil rights protection. Rights against invidious discrimination protected society’s downtrodden and persecuted minorities from injustices at the hands of a belligerent majority, but antisocial paranoids of all stripes came to see themselves as a beleaguered minority group. The moralism of civil rights language came loose from its religious moorings and was free to latch onto any ideological conviction or social practice. Americans today have a neurotic tendency to treat activism as therapy.
Chapter Four will put social activism on the therapist’s couch. The march to free the Jena Six adopted the posture of the freedom riders from the safety of the twenty-first century—more an exercise in nostalgia than a focused social protest. It followed the lead of the Million Man March, which aped the symbolism of 1963’s historic March on Washington but lacked the political goals that could make that symbolism meaningful. Such politically aimless activism reaches absurd extremes in “Critical Mass” demonstrations, where bicyclists commandeer the streets of San Francisco and other major cities in a social protest that has devolved into an antisocial indulgence. Demonstrations, marches, rallies, and public protests are a rite of spring on the nation’s college campuses and in its major cities—a countercultural affectation as commonplace as ripped jeans and often about as practical. Social protest in the United States has become an interminable psychotherapy session, which yields neither insight nor effective solutions.
Meanwhile, a new generation of black politicians—of whom President Barack Obama is exemplary—have found it better to wield power than to fight it, offering new hope for practical and public-spirited solutions to long-suffered social injustices. Whether they can fulfill their promise remains to be seen, but their coolheaded pragmatism is a welcome change from the attitude of permanent ressentiment that characterizes many social activists.
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It’s time to rethink and reform the civil rights approach to social justice, which reached its high point sometime in the early 1970s and has been in decline ever since. Conservative judges have watered down or reversed some of its most important practical commitments, and changing race relations have made many of its assumptions anachronistic. Worst of all, civil rights have proven to be utterly inadequate to confront today’s most severe social inequities; in some cases, they have been downright counterproductive.
In Chapter Five, I’ll explore why today’s job markets, popular culture, and politics have left civil rights behind and suggest how some lesser-known civil rights ideas might make them more relevant, less burdensome to legitimate enterprises, and less subject to abuse. If we’re willing to put social justice ahead of individual entitlements, we can bring the promise of the civil rights movement into the new millennium. Scaling back individual claims may seem a bitter pill to some, but the costs of self-centered rights gone wrong are even harder to swallow. Today’s civil rights are ripe for abuse by extremists and opportunists. They have not provided a clear prescription for social change, and as a result, they have offered false hope to social justice advocates and to the public at large. They have siphoned energy away from more promising engines of progress, and they are increasingly used to undermine the very causes they were originally supposed to serve. We can prevent the abuses and reverse the setbacks if we replace the culture of selfish entitlement with the ethos of social responsibility and common purpose that must underlie any meaningful guarantee of rights. To secure social justice in the twenty-first century, we must put the civility back into civil rights.