The Paradox of Constitutional and Post-1965 Civil Rights

George Seaver

From time to time the NAS invites our members and other guests to write articles for The opinions expressed therein do not necessarily reflect the official position of the National Association of Scholars.

The National Association of Scholars has been concerned with the conflict between equality and diversity in higher education for much of its existence; included in the first 400 articles at the NAS website, 11 articles were specifically on diversity and 8 specifically on racial preferences. Social justice, also a frequent topic at NAS, is directly dependent on how you define equality, and is embedded throughout higher education. On May 21, 2009, addressing these concerns among others, Peter Wood wrote an essay entitled "Where do we start? Reforming American Education." In it he stated that "[the NAS] opposes...racial preferences," but it also "favors...scholarly inquiry founded on reason and civil debate." He expanded on this: 

It doesn't hurt to have a debate over whether America should stick with its Jeffersonian ideal of 'All men are created equal', or switch to the new concept of 'diversity', in which the conception that 'All groups are inherently different', takes precedence…We might benefit as well from a good debate over the essential characteristics of our civilization. Has it on the whole provided a successful path for human flourishing or is it mainly a legacy of various kinds of oppression?0

This essay is intended to contribute to that debate, a debate between classical liberalism and postmodernism.

The above conflict over equality set out by Dr. Wood is part of the greater paradox between the policies and legislation that came out of the post-1965 civil rights movement and the equality and liberty concepts developed during the 1760 to 1776 period that became the U.S. Constitution. This paradox is frequently revealed in the conflicting opinions of cultural critics and observers when they comment on civil rights next to Constitutional concepts. A few examples will serve to ring this out.

Robert Putnam is professor of public policy at Harvard's Kennedy School of Government, and has conducted painstaking research over many years on the importance of social bonds in community. His influential 2000 book, Bowling Alone, describes the consequences to society of the decline of social capital, specifically in civic, religious and other private, voluntary activities. He states that "the bonds of our communities have withered, and...this transformation has very real costs"1. These "bonds" are what deTocqueville found to be so effective in his 1835 analysis Democracy in America about classical liberalism, American style. Professor Putnam also states unequivocally that in the first half of the 20th century "American society was...more segregated and racist than in the 1960's and 1970's" and this period "marginalized Americans because of race, gender, social class or sexual orientation"2. This interpretation of civil rights, which is properly termed social civil rights, suggests intervention by government into interpersonal relations and conflicts, in contradistinction to Madisonian civil rights, as we will see.

A second example comes from the writings of the noted historian and member of the Kennedy Administration, Arthur Schlesinger, Jr. In 1992 he wrote The Disuniting of America in which he laments that the recent "ethnic upsurge began as a protest against the Anglocentric culture...and threatens the original theory of America"3, the "American Creed" as he and Myrdal term it. Professor Schlesinger also states that "I have been a life-long advocate of civil rights"4 and he called for "shamefully overdue recognition to...minorities...spurned during the high noon of Anglo dominance"5. The "history of women, of immigration, of blacks, Indians, Hispanics and other minorities" explain why "voices long silent ring out of the darkness of history"6, and finally, "The result has been a reconstruction of American history7". Professor Schlesinger believes that civil rights require the intervention of government, but not to the point where it undermines "The Creed". This is the paradox.

The third example comes from the work of Gunnar Myrdal. Professor Myrdal was a Swedish social scientist, professor of International Economics at the University of Stockholm and author in 1942 of a major work entitled An American Dilemma: the Negro Problem and Modern Democracy. Professor Myrdal began his voluminous work by stating his acceptance of the overriding effectiveness of American classical liberalism in its Anglo-protestant form, what he terms the 'American Creed':

The unanimity around this Creed is the great wonder of America. The 'old' Americans adhere to the Creed as the faith of their ancestors. The others -Negroes, the new immigrants, the Jews and other disadvantaged and unpopular groups - could not possibly have invented a system of political ideals which better corresponds to their interests. So, it has developed that the rich and secure, and the poor and insecure have come to profess the identical social ideals8.

Yet nearly the entire two volumes of his book, some 1500 pages, is focused on what he sees as gross violations of this Creed regarding civil rights, first of Negroes, but also of Mexicans, Jews, poor whites, women, children and all the "disadvantaged". Professor Myrdal states that in addition to the Negro, "The masses of whites were also kept from political participation"9 in the South, and "women and children, their present status, reveal striking similarities to those of Negroes"10. He further states that "Mexicans are kept in a status similar to the Negro's...Italians, Poles, Finns are distrusted in some communities; Germans, Scandinavians and the Irish are disliked in others..."11. He concludes that "American civilization is permeated by animosities and prejudices attached to ethnic origin...or race...which keep the minority groups in a disadvantaged economic or social status. They are contrary to the American Creed"12. The paradox is that these ethnic and racial factions in America support and benefit from this American Creed which, it is claimed, discriminates against them. This conflict is commonplace among observers of the American Creed who otherwise believe in it. For example, The U.S. Supreme Court endorsed this government intervention between factions with its "disparate impact" ruling of 1971 and its "diversity" ruling three decades later. Perhaps the "American Creed" is not properly understood.

The way out of this paradox, between James Bryce's "amazing solvent power which American institutions, habits and ideas exercise upon newcomers of all races"13 and Myrdal's rank "animosities and prejudices that are contrary to the American Creed" is found in a proper understanding of Constitutional civil rights. The Founders of the Constitution were greatly concerned with the problem of civil rights, with what they termed the "control of the violence of factions"14, finally summarized in Federalist Papers Nos. 9, 10 and 51. This was debated during the 1760-1776 period leading up to the Revolutionary War but, most importantly, by the Federalists and Anti-Federalists during the post-War (1777-1788) debate and adoption of the U.S. Constitution. The pamphlets of that period and their summation in the Federalist Papers show how the solution to these ancient problems of republics was reasoned through and incorporated into the Constitution; it provides the answer to the above paradox.

One of the four major concepts debated during that post-war period, which established the Federalist and Anti-Federalist alignment, concerned the creation of a republic form of government extending over a large population and geographic land area. The results of this debate, its codification, became the primary reason why American classical liberalism became known as American exceptionalism. This concept provided the means of guaranteeing, on balance, what Myrdal termed the social rights of minorities, what Madison and Montesquieu called civil rights for factions and interests. American exceptionalism, until recently, was unique in the world in its ability to form a consensus across multiplicitous racial and ethnic factions and a continent size area.

The received wisdom in 1760, when the complaints about British rule first began to arise, was that a republic had to be of limited population and land area because of the instabilities created by factions. This came from the monumental work of Montesquieu in 1748, entitled The Spirit of the Laws. This book was a central text in eighteenth century thought and provided an analysis of the political systems of antiquity (Athens, Sparta and Rome), as well as of the contemporary republics of Switzerland and Holland. Montesquieu was referred to throughout the Constitutional period; his analysis that only a small, homogeneous people could succeed as a republic was vigorously advanced by the Anti-Federalists, particularly after the Constitutional Convention and during the ratification debates in the state conventions. They alerted their fellow citizens to "those dangerous elements - factions, interests, and parties" and asked how could "a republican constitution...cope with the fact that the larger the unit of government, the greater the number of factions and the smaller the control them"15.

John Adams had set the Federalist stage in his 1776 pamphlet: "You and I, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have enjoyed an opportunity of making an election of form and establish the wisest and happiest government that human wisdom can contrive"16. In 1788 the Federalists, Timothy Pickering, John Stevens, James Wilson, Alexander Hamilton and James Madison for example, responded to the Anti-Federalists, first by exhorting their fellow citizens to "rise to the extraordinary occasion before them by thinking freshly and fearlessly"17. Then, in response to Montesquieu and his Anti-Federalist adherents Hamilton showed that those "tiny republics of classical antiquity were in fact scenes of constant and often fatal squabbling; only the larger confederacies had any stability", and that "the dimensions that Montesquieu must have had in mind were far shorter of those of the present states"18.

Both Federalists and Anti-Federalists contributed to the final constitutional result. They both agreed on the abhorrence of the national government intervening in the individual lives of citizens. The pseudonymous "Brutus" expressed these fears in 1788 that

the national government will introduce itself into every corner of the city and country; it will wait upon the ladies in their carriages.. [and] at church; it will enter the homes of every gentleman; it will take cognizance of the professional man in his office; it will watch the merchant in his store; it will follow the mechanic to his shop; it will be a constant companion of the farmer; and finally, it will light upon the head of every person in the United States. To all the language in which it will address them will be, GIVE! GIVE!19

This concern about the intrusion by the national government was incorporated by James Madison in his Federalist mechanism to guarantee social civil rights, as we will see.

The Federalists advanced another innovation and a corollary to the 'large republic' concept, to accommodate republican ideas to the reality of the United States. The received wisdom from Hobbes, Rousseau and Blackstone was that sovereignty was indivisible, residing entirely with the king or Parliament20,21. George Mason in 1788 reasserted that "two concurrent powers cannot exist long together; the one will destroy the other"22. The Federalists responded that for the conditions relevant to the United States sovereignty could be divided between the several states and the national government, much like the coexistence of powers between cities and their states23.

With these innovative concepts in place the United States would become a federal republic encompassing a continent and with multiplicitous factions and interests, divided sovereignty and a resistance to federal intervention, which would become the elements of the guarantee for civil rights. It was left to James Madison to bring all this together to give the federal republic its ability to control factions and assure civil rights; his Federalist Papers Number 10 and 51 gave this argument "its ultimate range, depth and intellectual elegance"24. In Federalist 51 he states clearly what Constitutional civil rights are:

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of the country and number of people comprehended under the same government25.

Madison discusses the alternative of national government intervention to achieve civil rights in Federalist 10: "The latent causes of faction are sown in the nature of man…Removing the cause of faction by destroying the liberty which is essential to its existence...was worse than the disease. Liberty is to faction what air is to fire. Liberty essential to political life" and, finally, the curing of "the mischief of factions" is not by "removing its causes" but "by controlling its effects"26. Madison's configuration was not entirely new; Voltaire in his English Letters of 1734, which incidentally, caused his exile from France, states that "If one religion only were allowed in England, the Government would very possibly become arbitrary; if there were but two, the people would cut one another's throats; but as there are such a multitude, they all live happy and in peace"27.

This condition of short-term discomfort of minorities was inadvertently recognized by Professor Schlesinger when he noted that "nearly all minorities succumb" to "mutual suspicion and hostility...[which] are bound to emerge in a society bent on defining itself in terms of jostling and competing groups"28. Professor Myrdal termed this "bewildering impression...of chaotic unrest as paradoxical", but when "the American Creed is detected, the cacophony becomes a melody"29. Further insight into this came in 1962 from the Preface to the 20th anniversary edition of The American Dilemma. The authors stated that "changes [in the Negro problem] have occurred at a considerably more rapid rate than was anticipated;...the changes have occurred in harmony with the traditions of the American Creed"30. For civil rights at the federal level after 1954 and the "Supreme Court's historic decision wiping out separate but equal", they observed, "it could go no further in principle, for it was now operating in full accord with the Constitutional provisions for full equality"31. In their 20th-year Summary they concluded "the change of the preceding 20 years appeared as one of the most rapid in the history of human relations"32. These trends were confirmed in greater detail and updated by Stephen and Abigail Thernstrom in their 1997 book, America in Black and White. They found that during the two decades between 1940 and 1960 Black Americans improved their position faster than any other group in American history33, just as Myrdal had found. Extending Myrdal's analysis, they found that between 1940 and 1970, Black white collar jobs, annual income, poverty rate and high school education numbers improved by more than 50%, and, of great significance, black voter registration went from 3% to 51%33.

The early 1960's were a period of great good will, of what Montesquieu and Madison would term "republican virtue," towards the civil rights movement; but then with the subsequent 40 years of very active governmental intervention, the attitude changed markedly, to one of manipulation, personal gain, and resentment on all sides. There were also significant losses in key areas to Black Americans, as reported by the Thernstroms33. This has spread to many other factions, as is suggested by the books cited in the first three paragraphs of this essay. A 2009 analysis of this paradox in regards to gender is presented by University of Pennsylvania (Wharton School) Professors Betsy Stevenson and Justin Wolfers in their 48-page research paper, "The paradox of declining female happiness." They conclude that, "the robust evidence [is] in favor of a rather puzzling paradox: women's relative subjective well-being has fallen over a period in which most objective measures point to robust improvement in their opportunities"34.

The Constitutional civil rights approach involving the competition of factions, parties and interests under an observed Constitution unravels the opening and closing paradox and, after all, has emerged the subtler, more effective, if imperfect, choice. In 18th century terms, we should dis-establish race and gender today just as religion was dis-established in 1789.

George Seaver is a former Teaching Fellow and postdoctoral Fellow at Harvard University and at the Massachusetts Institute of Technology.



   0. Wood, P., 2009: Where do we start? Reforming American Education. National
       Association of Scholars, May 21, 2009. <>

  1. Putnam, R., 2000: Bowling Alone. Simon and Schuster, NY. pp. 402, 17, 201.
  2. Ibid., p. 195, 202.
  3. Schlesinger, A. Jr., 1992: The Disuniting of America. W.W. Norton, NY. p.43
  4. ibid., p.75.
  5. ibid., p. 15.
  6. Ibid., p. 65, 66.
  7. Ibid., p. 66.
  8. Myrdal, G., 1942: The American Dilemma: the Negro Problem and Modern Democracy. Randon House. NY. p. 573.
  9. ibid., p. 999.
  10. ibid., p. 1073.
  11. ibid., p. 53.
  12. ibid., p. 52.
  13. Bryce, J. 1888: The American Commonwealth. Vol. II. London. p. 328.
  14. Madison, J. (Publius), 1788: The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection. The Federalist Papers, No. 10. 1788.
  15. Bailyn, B., 1992: The Ideological Origins of the American Revolution. Harvard University Press, Cambridge, MA. 1967. P. 300.
  16. ibid., p. 272.
  17. ibid., p. 352.
  18. ibid., p. 361.
  19. ibid., p. 337.
  20. ibid., p. 199.
  21. Rousseau, J., 1755: The Social Contract. P. 422.
  22. Bailyn, B., ibid., p. 336.
  23. ibid., p. 360-361.
  24. ibid., p. 366.
  25. ;Madison, J.(Publius), 1788: Separation of the Departments of Power. The Federalist Papers No. 51. 1788.
  26. Madison, J. (Publius), 1788: Federalist Paper Number 10.
  27. Voltaire, 1734: Religious Toleration. English Letters, 1734.
  28. Schlesinger, A. Jr., ibid. p. 112.
  29. ;Myrdal, G., ibid., p. 3.
  30. Myrdal, G. and A. Rose, 1962: An American Dilemma; the Negro Problem and Modern Democracy. Pantheon Books, NY. p. xxvii.
  31. ibid., p. xxxiii.
  32. ibid., p. xliii.
  33. Thernstrom, S. and A. Thernstrom, 1997: America in Black and White. Simon and Schuster, NY. pgs. 83, 187, 236, 240, 265, 355.
  34. Stevenson, B. and J. Wolfers, 2009: The paradox of declining female happiness. National Bureau of Economic Research, Working Paper No. 14969, May 2009.
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