"The Law That Ate the Constitution"

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  • Twangbanger

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    Oct 9, 2010
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    Trigger alert: this thread discusses a specific article.

    The title is a reference to the Civil Rights Law of 1964, and specifically to its permanent, unintended effects, rather than the original intent which was being address at the time.

    https://claremontreviewofbooks.com/the-law-that-ate-the-constitution/
    https://claremontreviewofbooks.com/the-law-that-ate-the-constitution/

    Notable excerpts:

    "...The genius of civil litigation as a method of censorship is that it puts private companies, not government, in charge of enforcement. “The fear of litigation privatized the suppression of disagreement, or even of speculation,” explains Caldwell. “Because there was no statutory ‘smoking gun’ behind it, this new system of censorship was easily mistaken for a change in the public mood.” Conservative brains were scrambled by this new situation in which businesses were the bad guys, so they fell back on the tactic of pointing out horror stories of P.C. overreach, hoping that the sheer ridiculousness of these examples would drive a stake through political correctness. This tactic will never work, Caldwell insists. It doesn’t matter how ridiculous business owners consider the latest P.C. demands. As long as the law requires them to be vigilant about conduct that can be characterized as discriminatory, they are going to keep enforcing P.C. rules..."

    and:

    "...If the consequences of civil rights law have been as totalitarian as Caldwell says, why has the harassed majority not revolted? The short answer is that they tried. Caldwell identifies the election of Ronald Reagan in 1980 as the moment when adherents of the old Constitution fought back, and the next eight years as the period when their hopes were conclusively defeated. “Reagan changed the country’s political mood for a while,” he laments, “but left its structures untouched.”Reagan promised to shrink government, roll back the Great Society, and end affirmative action “with the stroke of a pen.” Instead, the national debt tripled. The federal civil rights bureaucracy proved as impossible to abolish as the Department of Education. Voters favored lowering immigration and getting control of the border, and Reagan promised to do it, but the compromise bill passed in 1986 traded immediate amnesty for enforcement measures that never came. “Reagan flung open the gates to immigration while stirringly proclaiming a determination to slam them shut,” Caldwell observes. “Almost all of Reaganism was like that...


    The author is expressing a view I've often reflected on favorably, which is that everything we are experiencing with "PC," "Snowflakes," and "Social Justice" is the foreseeable legal consequence of the fact that the Civil Rights Act did not have an expiration date. It should have been an emergency, temporary measure. Every right that every American of every color ever needed protected, was already protected by the original Constitution. Our nation just did not live up to it. Fortunately, we have mechanisms for dealing with such short-falls. They needed to be addressed by temporary measures, not permanent ones. The erection of a permanent civil rights grievance architecture ultimately leads to the end of real freedom in this country.

    I often see conservatives offering the childishly-endearing viewpoint that somehow, someday...the country must grow sick of this, and reject it. This seems like an impotent observation. I've often pointed out that right _now_, athletes with penises are competing against real biological women in legitimate athletic contests and beating them and winning titles reserved for biological women. This apparently gets no "rise" from anyone. If that's not a preposterous enough example to precipitate the much-hoped-for resistance and overthrow of these ideas - what is?

    These kinds of outcomes are legally pre-determined. It just took a while to get there. Until we repeal the laws - either by legislation, or by the installation of the right kinds of judges to strike them down - this is going to continue to happen. Any form of "popular resistance" has no efficacy unless it results in the foregoing.
     
    Last edited:

    GodFearinGunTotin

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    Mitchell
    I liked the paragraph early in the article: It really is like we have 2 constitutions now. One had relatively unambiguous language and specific, limited powers; the other is a swamp of ever changing language and ever expanding powers given up by the people.
     

    Leadeye

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    .
    Leadership will always find ways to make money/benefits from the law regardless of what it is or the consequences that flow from their actions. It's how things work in the real world and probably have since people organized into societies. Want answers about why things happen?

    Always follow the money
     

    churchmouse

    I still care....Really
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    Leadership will always find ways to make money/benefits from the law regardless of what it is or the consequences that flow from their actions. It's how things work in the real world and probably have since people organized into societies. Want answers about why things happen?

    Always follow the money

    :thumbsup:
     

    rob63

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    Leadership will always find ways to make money/benefits from the law regardless of what it is or the consequences that flow from their actions. It's how things work in the real world and probably have since people organized into societies. Want answers about why things happen?

    Always follow the money

    I think nothing illustrates how correct you are better than the following paragraph from the article. It's clear that the point of it all is to win lawsuits rather than have clear guidelines on what constitutes discrimination.

    Organizations are forced to err on the side of political correctness because civil rights law is fundamentally vague, even self-contradictory. Affirmative action at professional schools is defended on the grounds that minority populations are better served if they have doctors and lawyers who look like them. When Walgreens was found to be assigning black managers to stores in certain neighborhoods on the logic that black customers are better served by managers who look like them, the resulting anti-discrimination case cost the company $24 million to settle. When Ann Hopkins sued Price Waterhouse for sex discrimination for not making her a partner, the court found in Hopkins’s favor because the firm had ignored objective criteria, like dollar value of business brought in, in favor of subjective measures like personality. Last year, a judge upheld Harvard’s admissions policy against the lawsuit brought on behalf of rejected Asian applicants because she found that Harvard must be allowed to ignore objective criteria, like test scores, in favor of subjective measures like personality.
     

    jamil

    code ho
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    Jul 17, 2011
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    Gtown-ish
    I liked the paragraph early in the article: It really is like we have 2 constitutions now. One had relatively unambiguous language and specific, limited powers; the other is a swamp of ever changing language and ever expanding powers given up by the people.

    That started really early in our history with Hamilton's doctrine of implied powers, as opposed to Jefferson's idea that if the constitution doesn't specifically establish a power, then the federal government doesn't have it. Hamilton was right about a lot of things, but "implied power" was not one of them. All kinds of power not expressed in the constitution have been built upon that.
     

    jamil

    code ho
    Rating - 0%
    0   0   0
    Jul 17, 2011
    60,169
    113
    Gtown-ish
    Trigger alert: this thread discusses a specific article.

    The title is a reference to the Civil Rights Law of 1964, and specifically to its permanent, unintended effects, rather than the original intent which was being address at the time.

    https://claremontreviewofbooks.com/the-law-that-ate-the-constitution/
    https://claremontreviewofbooks.com/the-law-that-ate-the-constitution/

    Notable excerpts:

    "...The genius of civil litigation as a method of censorship is that it puts private companies, not government, in charge of enforcement. “The fear of litigation privatized the suppression of disagreement, or even of speculation,” explains Caldwell. “Because there was no statutory ‘smoking gun’ behind it, this new system of censorship was easily mistaken for a change in the public mood.” Conservative brains were scrambled by this new situation in which businesses were the bad guys, so they fell back on the tactic of pointing out horror stories of P.C. overreach, hoping that the sheer ridiculousness of these examples would drive a stake through political correctness. This tactic will never work, Caldwell insists. It doesn’t matter how ridiculous business owners consider the latest P.C. demands. As long as the law requires them to be vigilant about conduct that can be characterized as discriminatory, they are going to keep enforcing P.C. rules..."

    and:

    "...If the consequences of civil rights law have been as totalitarian as Caldwell says, why has the harassed majority not revolted? The short answer is that they tried. Caldwell identifies the election of Ronald Reagan in 1980 as the moment when adherents of the old Constitution fought back, and the next eight years as the period when their hopes were conclusively defeated. “Reagan changed the country’s political mood for a while,” he laments, “but left its structures untouched.”Reagan promised to shrink government, roll back the Great Society, and end affirmative action “with the stroke of a pen.” Instead, the national debt tripled. The federal civil rights bureaucracy proved as impossible to abolish as the Department of Education. Voters favored lowering immigration and getting control of the border, and Reagan promised to do it, but the compromise bill passed in 1986 traded immediate amnesty for enforcement measures that never came. “Reagan flung open the gates to immigration while stirringly proclaiming a determination to slam them shut,” Caldwell observes. “Almost all of Reaganism was like that...


    The author is expressing a view I've often reflected on favorably, which is that everything we are experiencing with "PC," "Snowflakes," and "Social Justice" is the foreseeable legal consequence of the fact that the Civil Rights Act did not have an expiration date. It should have been an emergency, temporary measure. Every right that every American of every color ever needed protected, was already protected by the original Constitution. Our nation just did not live up to it. Fortunately, we have mechanisms for dealing with such short-falls. They needed to be addressed by temporary measures, not permanent ones. The erection of a permanent civil rights grievance architecture ultimately leads to the end of real freedom in this country.

    I often see conservatives offering the childishly-endearing viewpoint that somehow, someday...the country must grow sick of this, and reject it. This seems like an impotent observation. I've often pointed out that right _now_, athletes with penises are competing against real biological women in legitimate athletic contests and beating them and winning titles reserved for biological women. This apparently gets no "rise" from anyone. If that's not a preposterous enough example to precipitate the much-hoped-for resistance and overthrow of these ideas - what is?

    These kinds of outcomes are legally pre-determined. It just took a while to get there. Until we repeal the laws - either by legislation, or by the installation of the right kinds of judges to strike them down - this is going to continue to happen. Any form of "popular resistance" has no efficacy unless it results in the foregoing.

    Many people do get sick of it, but it's a fundamental problem that people tend to think that because the people around them think a certain way, that the majority is on their side. For example, a whimsical belief in a moral majority, that, if it ever existed in the first place, that it still exists now. I don't think it did, really. And I certainly don't think it does now.

    It's not like there's *no* opposition though. For example, the "female" athletes with penises, have opposition in the form of TERFS (trans-exclusionary radical feminists) are not a small left wing group of feminists who are pissed that people with penises are taking over their feminist movement. While I'm entertained by the bickering between the factions, there is a reluctant alliance of TERFs with sane people, at least on the trans front. The rainbow coalition is eager to denounce, ridicule and cancel TERFs. Because feminist TERFs have some intersectional power, they can at least dare to stand up to the radical trans lobby. But your point remains, even though there seems to be a slight turning of the corner on cancel culture, I think it's more a chink in the armor that can probably be repaired before the allies of sanity can defeat it.

    Really, it is the next generations who will either succumb or overcome. Given the popularity of socialism with younger people, I don't see a lot of reasons to hope to ever get back to the ideas this country was founded upon.
     

    churchmouse

    I still care....Really
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    Rating - 100%
    187   0   0
    Dec 7, 2011
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    Speedway area
    Many people do get sick of it, but it's a fundamental problem that people tend to think that because the people around them think a certain way, that the majority is on their side. For example, a whimsical belief in a moral majority, that, if it ever existed in the first place, that it still exists now. I don't think it did, really. And I certainly don't think it does now.

    It's not like there's *no* opposition though. For example, the "female" athletes with penises, have opposition in the form of TERFS (trans-exclusionary radical feminists) are not a small left wing group of feminists who are pissed that people with penises are taking over their feminist movement. While I'm entertained by the bickering between the factions, there is a reluctant alliance of TERFs with sane people, at least on the trans front. The rainbow coalition is eager to denounce, ridicule and cancel TERFs. Because feminist TERFs have some intersectional power, they can at least dare to stand up to the radical trans lobby. But your point remains, even though there seems to be a slight turning of the corner on cancel culture, I think it's more a chink in the armor that can probably be repaired before the allies of sanity can defeat it.

    Really, it is the next generations who will either succumb or overcome. Given the popularity of socialism with younger people, I don't see a lot of reasons to hope to ever get back to the ideas this country was founded upon.

    Last sentence. Agreed. The mindset is in place and deeply engrained.
     

    Twangbanger

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    ...It's not like there's *no* opposition though. For example, the "female" athletes with penises, have opposition in the form of TERFS (trans-exclusionary radical feminists) are not a small left wing group of feminists who are pissed that people with penises are taking over their feminist movement. While I'm entertained by the bickering between the factions, there is a reluctant alliance of TERFs with sane people, at least on the trans front. The rainbow coalition is eager to denounce, ridicule and cancel TERFs. Because feminist TERFs have some intersectional power, they can at least dare to stand up to the radical trans lobby. But your point remains, even though there seems to be a slight turning of the corner on cancel culture, I think it's more a chink in the armor that can probably be repaired before the allies of sanity can defeat it.

    Really, it is the next generations who will either succumb or overcome. Given the popularity of socialism with younger people, I don't see a lot of reasons to hope to ever get back to the ideas this country was founded upon.

    What court cases have the TERFs won?

    What can the next generations do, if the law continues to be buried under an increasingly deep avalanche of precedent based on CRA '64?

    My point is that it's not up to movements, attitudes, or generations. The Civil Rights Act of 1964 places the issue beyond the reach of all those things. The foolishness or sagacity of public opinion are rendered, frankly, irrelevant. All that matters is legal precedent. And conservatives are not winning those battles. They are not even in the arena. It's all being decided by a technical class of experts in the law, who have created a mechanism completely immune to any form of public resistance. The one possible exceptional example would be the election of someone like DJT, who could appoint judges vetted (let's just call it litmus-tested) by the Federalist Society. But even then, you still have decades of court decisions which would need to be overcome, a legal tectonic plate of case law which continues to push up over American society and crumble it underneath. If a meteor passed overhead tonight, and everyone on social media woke up tomorrow and upended the social "consensus" on woke bull****, it would not really change anything.

    This isn't being decided on Facebook. It's being decided in courtrooms.

    It's not attitudes, opinions, and "Overton Window." It's legislation, case law, and stare decisis.
     

    jamil

    code ho
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    Jul 17, 2011
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    Gtown-ish
    What court cases have the TERFs won?

    What can the next generations do, if the law continues to be buried under an increasingly deep avalanche of precedent based on CRA '64?

    My point is that it's not up to movements, attitudes, or generations. The Civil Rights Act of 1964 places the issue beyond the reach of all those things. The foolishness or sagacity of public opinion are rendered, frankly, irrelevant. All that matters is legal precedent. And conservatives are not winning those battles. They are not even in the arena. It's all being decided by a technical class of experts in the law, who have created a mechanism completely immune to any form of public resistance. The one possible exceptional example would be the election of someone like DJT, who could appoint judges vetted (let's just call it litmus-tested) by the Federalist Society. But even then, you still have decades of court decisions which would need to be overcome, a legal tectonic plate of case law which continues to push up over American society and crumble it underneath. If a meteor passed overhead tonight, and everyone on social media woke up tomorrow and upended the social "consensus" on woke bull****, it would not really change anything.

    This isn't being decided on Facebook. It's being decided in courtrooms.

    It's not attitudes, opinions, and "Overton Window." It's legislation, case law, and stare decisis.

    The gay/cake decision, for example, happened because of what George Takai said. They're organized and well funded. Strategic. And they have judges in the right places, and they intentionally sought out circumstances to exploit. And they won. Of course, they couldn't have won without the groundwork of the CRA of 1964, and the subsequent state law's extension of that to add sexual orientation. They pushed the window. They got their precedent. And now it's written into several state constitutions. But not the US constitution. And even if it were, it's not impossible to change the law. It's impossible to change it now, but only because of where the window is. You wouldn't need decades of judicial appointments to overcome the CRA act.

    You'd just need a majority in the House, a fillibuster-proof majority in the senate, and the white house, and pass a law revoking the necessary parts of the CRA of 1964 that perpetuates the problems with it. Probably some of the CRA is fine. It's the part that establishes special classes of citizens by identity groups that caused the problem. I think to get past race in this country we have to stop obsessing over it. People are people, period. Maybe CRA needs to be modified just to say, mobs of people and businesses can't seek to oppress people. Race doesn't have to be a part of that.
     
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