“The changes of the 1960’s, with civil rights at their core, were not just a major new element in the Constitution. They were a rival Constitution, with which the original one was frequently incompatible — and the incompatibility would worsen as the civil rights regime was built out. Much of what we call “polarization,’ or ‘incivility’ in recent years is something more grave — it is the disagreement over which two constitutions will prevail: the dejure constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the defacto constitution of 1964, which lacks this kind of legitimacy but commands the near-unanimous endorsement of judicial elites and civic educators and the passionate allegiance of those who received it as liberation. The increasingly necessity that citizens choose between these two orders, and the poisonous conflict into which it ultimately drove the country, is what this book describes.
The Age of Entitlement; America Since the Sixties — p. 6
The only error above is that the “new Constitution” that Caldwell speaks off didn’t arrive en toto in 1964 with the Civil Rights legislation. What happened in 1964 wasn’t a sudden break with the original Constitution but merely the natural extension of what was put into motion with the 13th – 15th amendments. One should think of 1964 as just another punctuated apex along the way from 1865 forward.
Other punctuated apexes came with Theodore Roosevelt and his square deal progressivism which advocated for TR’s “three C’s; “conservation of natural resources, control of corporations, and consumer protection,” each which were outside the bounds of the original Constitutions delegated and enumerated powers granted to the Federal Government. TR’s grasp at extra-Constitutional power is seen in his “New Nationalism” speech,
“When I say that I am for the square deal, I mean not merely that I stand for fair play under the present rules of the game, but that I stand for having those rules changed so as to work for a more substantial equality of opportunity and of reward for equally good service.”
What else is the idea of “changing the rules” except for “changing the Constitution?”
Another punctuated apex that violated the original Constitution came with Woodrow Wilson’s Federal Reserve and 16th amendment. The original Constitution in Article I section 8 delegated to the Federal Government the power to coin money. Though admittedly long debated, the Federal Reserve is an unconstitutional addition to the original Constitution. In addition to that the 16th amendment was not legally passed. When Wilson left office the morphing of the original Constitution had continued.
Finally, FDR saw the original Constitution continued to be morphed into a new Constitution with FDR’s alphabet soup legislation which had no justification in the original US Constitution. None of FDR’s Fascist ABC legislation was connected to the original Constitutions enumerated and delegated powers.
Much more could be said on this subject. I do like the Caldwell quote but we need to keep in mind that the Constitution had long been morphing long before the Civil Rights legislation though indeed it is without doubt true that the Civil Rights legislation was and remains completely unconstitutional.