Given its title, a reader might expect The Age of Entitlement to be an intelligible jurisprudential account of how, out of the anti-segregation movement, ‘civil rights’ became an all-encompassing judicial assault on natural law and common sense. This expectation, however, is unlikely to be met.
The author tries to make the case against a common prejudice regarding ‘civil rights’: the opinion that, by sheer accident, “the constitutional baby [has] been thrown out with the segregationist bathwater.” His main contention is that the subsequent advancement of claims for benefits and liberties—and, in some cases, licenses—under the ‘civil rights’ umbrella “was deduced judicially from the curtailments on freedom of association that the Civil Rights Act itself had put in place.” Such “curtailments” encompassed prohibiting the exclusion of black people from private spaces open to the public, and later evolved into certain impositions concerning hiring or employment selection policies.
The declared intention of such policies was to remove bias from decisions concerning the distribution of goods (such as jobs or students’ positions) by private agents. In Griggs v. Duke Power Co. (1971), for instance, under the pretext of eliminating bias, the U.S. Supreme Court forbade a power plant from applying hiring or transfer tests which, regardless of any racial discriminatory intent, turned out to be unfavorable to black people.
Making this stance the official paradigm for public policy is admittedly a serious measure, since it projects ill intentions where they do not necessarily exist. But does it really derive from anti-segregation efforts? “Once bias is held to be part of the ‘unconscious’, of human nature,” Caldwell writes, “there are no areas of human life in which the state’s vigilance is not called for.” In this we can agree with the author. However, this is also an admission that such a mode of legal reasoning does not derive solely from the need to outlaw segregation but from broader theoretical premises—such as those lurking beneath Marxism or Freudianism, for example.
This is not the only reason to question Caldwell’s thesis that the U.S. ‘civil rights’ campaign in the 1960s was equivalent to opening a Pandora’s box of left-wing nonsense. His insistence upon the decisive character of such “curtailments on freedom of association”—heavily influenced by John Stuart Mill’s harm principle—is much more problematic. After all, limitations on private freedom of association imposed by the government could hardly account for the rise of abortion or gay ‘marriage’ (let alone social acceptance of one’s ‘transgender identity’) to the category of rights.
In fact, the case seems to be just the opposite. It is, for example, more rational to regard the legal endorsement of a woman’s choice to cut her physical bonds to another human being (even if this implies his/her death) as an expansion of her ‘freedom of association.’ The same goes for the legal redefinition of ‘marriage’ to encompass other ‘alternative’ relationships, not just those between two people of the opposite sex.
One could argue that the liberal emphasis on individual freedom as ‘the power to choose,’ so cherished by Mill (and Caldwell, apparently), is at the root of all such phenomena, including racism—for it is not intelligence but ‘choice’ as limitless power that undergirds the disregard for human nature and the rights of black people and the unborn. It also underlies the haughtiness of redefining the meaning of sex, both as a kind of act between two people (which establishes the material basis for marriage) and as the natural individual condition that allows someone to engage in such a relation in a complementary way.
Despite what has been said, one should not conclude that The Age of Entitlement is not worth reading, since it offers much relevant information and insights about ideological developments in the debate over Civil Rights in the U.S. over the past sixty years. However, it fails to provide an intellectually sound thread for its narrative, relying too much on the same theoretical roots of the movement it intends to critique: the liberalism of John Stuart Mill.
Marcos Paulo Fernandes de Araujo holds a Doctor of Laws degree from Rio Grande do Sul Federal University. He is currently an editorial fellow at The European Conservative and a member of Instituto do Bem Comum (Curitiba, Brazil).