We may locate the Third Founding of the United States in the 1964 Civil Rights Act and its various amendments, the 1965 Voting Rights Act, and other attendant pursuant articles and legal enfranchisements for blacks, including the Equal Employment Opportunity Act of 1972. I place reparations for black Americans into the plethora of affirmative action programs that set aside preferential policies in education and employment for blacks and women. The 1964 Civil Rights Act was as revolutionary as the founding of America and the Bill of Rights. Not only did it single-handedly right the wrongs of slavery and Jim Crow segregation, but in this unique moment in US history, in (arguably) justifiably violating the property rights of US citizens, it was the most audacious act of cultural and moral eugenics ever leveled against the United States of America. It resulted in the broadest moral resocialization and social engineering program of white Americans in the history of this country. The concomitant moral eugenics was a form of moral paternalism and intrusion in the conscience of white Americans. It was an abrogation of freedom of conscience and the application of that conscience in concretized, material form.
The Civil Rights Act of 1964, enacted on July 2 of that year, was a landmark civil rights and labor law that outlawed discrimination based on race, color, religion, sex, national origin, and later, sexual orientation. It prohibits unequal application of voter registration requirements, racial segregation in all schools and public accommodations, and any employment discrimination. Under the Act, Congress asserted its authority to legislate under various parts of the Constitution, especially to regulate interstate commerce. It guaranteed all citizens equal protection under the laws under the Fourteenth Amendment and exercised its duty to protect voting rights under the Fifteenth Amendment.
The Equal Opportunity Employment Act of 1972, a federal law that amended Title VII of the Civil Rights Act of 1964, addressed employment discrimination against black Americans and other minorities. It empowered the Equal Employment Opportunity Commission to take legal action against individuals, employers, and labor unions that violated the employment provisions of the 1964 Act. The commission also required employers to make reasonable accommodation for the religious practices of employees.
The target of the 1964 Act was as much whites as it was blacks—and not just in the sense of mandating that whites cease egregious practices of discrimination against blacks, but rather, that whites become entirely new types of persons by undergoing a moral makeover.
The state had been the biggest manufacturer of systemic racism by creating laws that barred blacks from full entrance into mainstream society and had been a great socializer in the formation of the ethos, mores, norms, and values that shaped the sensibilities of whites. In short, it made it difficult for non-racist whites to be non-racist in their dealings with blacks. Homeowners and hoteliers were not free to sell or rent to whomever they chose regardless of race, and miscegenation laws prohibited interracial marriage. Conceptions of the good life were vastly limited for blacks based on their racial identities created not by private citizens but by the state. The establishment of racial taxonomies, of miscegenation laws, of redlining policies, and of discriminatory housing and school policies were all creations of the state—the biggest and most nefarious enemy of black Americans who had deputized and socialized ordinary American citizens into a cult of racist practices against their fellow citizens.
The 1964 Civil Rights Act was, therefore, no altruistic gift to black Americans, nor was it a repaid debt. The latter implies legitimate (or illegitimate) transactional exchanges between parties that call for payment to a creditor by one who had been temporarily accorded funds or some agreed-upon value by another party (the creditor). The 1964 Civil Rights Act accomplished that. In granting blacks full equality before the law, the state reversed a metaphysical crime it had long been guilty of committing against the former slaves: failure to apply the principle of legal egalitarianism to one group of people for a morally neutral reason—their ascriptive racial identity.
The 1964 Civil Rights Act would establish more than this, however. During the violence visited upon blacks during the movement to end segregation, when millions of Americans saw German shepherds and fire hoses turned against unarmed and non-responsive black people, something almost mystical happened that transformed the white imagination in this country. The black body—passive, submissive, and broken—became a meditative site for universal suffering, white shame, guilt, moral horror, and revulsion. It became a moment for contrition, redemption, repentance, and deep introspection on the part of white Americans as to how they wished their nation to proceed as a republic. It could be divided and bifurcated along racial lines with a separately configured humanity for two distinct human types. Or, in keeping with the moral meaning of America and the original spirit of the nation’s founding, it could involve a common humanity for all persons created in the image of one God who administered law equally to all and who did not favor any of his children more than others, based on any accidents ascribed to their births. In the end, a nation, not without contention and protestations, passed a bill that made private racial discrimination illegal.
Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972 became landmark pieces of legislation. The term equal, however, must be interpreted correctly as it applies to this legislation. It does not mean that every applicant or employee must be considered equal in ability or competency. Rather, it means that the law looks at all applicants or employees as equals who deserve fair treatment.
By illegalizing private racism, it criminalized the applied judgment of private conscience when that conscience applied itself in the realm of private ownership in the public realm. The government basically proclaimed to entrepreneurs and business owners, “You cannot treat your business as a mere extension of your home or your living room. You cannot use your property—which is the material application of your reason conjoined with your personal labor which, in turn, is an expression of your abstract values made concrete—in a manner that discriminates against blacks.”
The state’s role here was two-fold in that it was not just about the legal emancipation of blacks from the stranglehold of centuries of white domination, but the moral rehabilitation of whites who had sullied their souls and those of their descendants by continuing the mores and enhancing the ethos associated with slavery. That such actions lead to putative rights denial was indisputable.
I submit that the 1964 Civil Rights Act was an act of moral eugenics, an enormous social engineering program made to reshape the moral sensibilities of whites. It was, on one hand from the perspective of morality, necessary. Simultaneously, I think it was enacted also for the redemption of the white soul of America. It was beyond making legal demands of whites. It, in the end, was didactic and invasive, and ended up functioning like a comprehensive, legislative, moral doctrine that partially determined one way people could not cultivate conceptions of the good lives for themselves. The state declared to whites: “Harbor racist beliefs in your mind as much as you like, but you’d better not materially organize a lived life around those racist principles. You cannot apply them in reality.”
The state was also deliberately and knowingly violating freedom of conscience. Freedom of conscience only has resonance when its corollaries—the judgments of one’s mind—can be applied here in reality. In barring racists from applying their racist conscience into concrete practice in the form of privately discriminating against blacks in their private establishments, the state contravened into the realm a right of which citizens of any modern republic are the legatees—the right to freedom of one’s conscience. If one is restricted from living by the dictates of one’s conscience one is—whether they are right or wrong—paternalistically prevented from exercising one’s deepest values and convictions.
The racist would say that in refusing to privately deal with a black person he is not violating that person’s rights for the sole reason that such a person has no automatic right to the products of his labor. Another human can have no inalienable right to the product of one’s efforts that one has produced on behalf of one’s life. One is in ownership of the material expression of one’s mind and values applied to reality. Yet, the 1964 Act and its subsequent amendments ruled that blacks and other minorities did have such a right. The state used it to communicate that one’s racist conscience was so vile that it no longer had a place as a moral pollutant in the public sphere. The Act was meant to invite moral opprobrium and the concomitant emotions of shame and guilt.
Black faces conjoined with white ones in a struggle for legal and economic equality were also rebranding the metaphysical identity of the nation itself. The principle of egalitarianism was being applied outside the sphere of mere legality. Whites may have worked for their property and indulged in rhetorical plinth to shore up the right that secured it; however, something transformational was taking place in the new America. The nondiscriminatory clauses affixed to the Civil Rights Act protected government property from government appropriation but not from public access!
In other words, though services had to be paid for, access could never be denied. This made private property that was communally accessible by government decree a form of “social property.” Through its moral eugenics program, the state had inverted the principle of the right to property. The right to property is a right to action, simpliciter, not a right to an object. It is the right to pursue the efforts and actions that will result in the creation of or acquisition of property by earning it. The eugenical moment of the Civil Rights Act is expressed in the premise: human rights supersede property rights. Blacks were granted permission to appropriate white property for personal—albeit paid—consumption, to modify white conceptions of personal happiness and conceptions of the good that informed it. We may call this moral socialism.
The new America (imperfect as the instantiation of the vision was, given continued racial discrimination) would not just be an integrated one. There is no faster way to integrate a society than through fiscal models. One side of the Civil Rights Act was anointed with holy justice. The other was stamped with the imprimatur of enforced conviviality, which was a veneer behind which lay laws that explicitly mandated the terms of employment between the races and the rules of engagement between whites and blacks in white-owned businesses. Personal property had become the equivalent of public utility companies. The moral eugenics of the whole civil rights movement effected a direct change in the disposition of the cognitive outlook of the average white American citizen.
Jason D. Hill is professor of philosophy at DePaul University in Chicago specializing in ethics, social and political philosophy, American foreign policy, and moral psychology. He is a Shillman Journalism Fellow at the Freedom Center. Dr. Hill is the author of five books, including What Do White Americans Owe Black People: Racial Justice in the Age of Post-Oppression. Follow him on Twitter @JasonDhill6.