July 2 marks the 50th anniversary of the most famous Civil Rights Act in U.S history. Passed after the longest debate in congressional history, the Civil Rights Act (CRA) promised to secure justice for all regardless of race, color, creed, sex, or national origin. As I wrote in Race and Liberty: The Essential Reader, the law “was understood to mean ‘colorblindness’ by nearly every observer at the time.” The plain meaning of the act might be summed up as: “Nondiscrimination. Period.”
Supporters of the Civil Rights Act did everything in their power to make the language plain, clear and strong: one key clause stated:
“Nothing contained in this title shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of race, color, religion, sex, or national origin . . . .”
A chief sponsor of the law, Senator Hubert Humphrey (D-MN), rejected the “bugaboo” of preferences or quotas by stating “If the senator [opposing the act] can find . . . 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.”
In 1964, opponents predicted that a governmental push for racial outcomes was bound to occur, regardless of the plain language of the act. After all, the principle of a government limited by respect for individual liberty had always been flouted by those in power—including segregationist opponents of the law who now acted “shocked! shocked!” that the government might treat individuals differently based on race. This was sheer hypocrisy coming from those who defended racial discrimination by state governments.
Yet, hypocrisy aside, fifty years experience has shown that the CRA did lead, almost immediately, to the bureaucratic creation of racial categories (“check boxes”) used to further discriminatory treatment by a government seeking pre-determined outcomes in hiring, college admissions, contracting, voting, and much more. Attacking real or perceived private inequalities with governmental power, policymakers forgot that discrimination by government—however well-intentioned—is worse than private discrimination. Mindful of this distinction, those filing a brief in the Brown v. Board case (1954), stated that “segregation is unconstitutional because invoking ‘the full coercive power of government” . . . it acts as no other force can to extend inequality. . . .” Ten years later, bureaucrats rushed ahead with piecemeal social engineering, unmindful of this key distinction and in direct contradiction of the Civil Rights Act. How could the broad colorblind consensus of July 1964 dissipate so quickly?
Perhaps it was because the act seemed to augur swift change in social and economic relations—perhaps too swift in too short a time. Thus, that bright moment of multiracial harmony went up in the smoke of riot-torn cities and ever-more radical assertions by minority activists that “[their] groups were more equal than others”—so it must be, they argued, to make up for the past when “some groups (native-born whites, men) were “more equal.” Two wrongs would make it all right.