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The conservative war over the Civil Rights Act

A rift has been forming on the American Right. Credit: Getty

January 22, 2024 - 6:35pm

A rift has been forming on the American Right over civil rights and what the movement’s response should be to affirmative action and DEI. 

The conflict came into public view over Martin Luther King Jr. Day weekend in mid-January, when comments from Right-wing commentator Charlie Kirk criticising both King and the Civil Rights Act of 1964 came to light. Kirk had argued in a November speech that “we made a huge mistake when we passed the Civil Rights Act in the 1960s” because it led to the current moment of DEI. 

His statements, which triggered widespread condemnation in the press, are part of an ideological battle that’s long been bubbling under the surface on the American Right: should civil rights laws be used to advance Right-wing goals, or be scrapped altogether? 

Christopher Rufo has called for conservatives to weaponise civil rights law against the liberal project of “equity” – the pursuit of equal outcomes rather than equal opportunities. The Right, he argued, must apply 1960s civil rights laws in order to outlaw all racial discrimination. To his camp, civil rights laws are fundamentally good things which have been manipulated by the Left for sinister and discriminatory ends — yet it’s not too late to restore the true spirit of civil rights. 

“The ideological capture of the Civil Rights Act is neither fixed nor inevitable. Rather than argue for its abolition, Americans concerned about the excesses of the DEI bureaucracy should appeal to higher principles and demand that our civil rights law conform to the standard of colour-blind equality,” he wrote. “The answer to left-wing racialism is not right-wing racialism — it is the equal treatment of individuals under law.”

The activist’s call to action involves legislative bans on racial preference and affirmative action, abolishing DEI bureaucracy and overturning the 1970 Supreme Court precedent in Griggs v. Duke Power Company, which held that racially disparate outcomes are evidence of illegal discrimination, forming the legal framework for today’s pursuit of equal outcomes over equal opportunities.

Rufo’s views are popular not only on the Right but across the board; Americans broadly support equality of opportunity over equality of outcomes. Vivek Ramaswamy, Bill Ackman and activist James Lindsay have taken similar stances on the issue. 

But there are competing factions on the Right seeking to dismantle affirmative action and DEI through other means. Rather than using civil rights law to take down discriminatory “equity” programmes, libertarians would prefer the repeal of the Civil Rights Act of 1964, which they believe violates the constitutional right to freedom of association by banning discrimination in the private sector. Lately, this idea has been repopularised by the political scientist Richard Hanania, who argues that our current predicament is just the culture catching up with the legal framework of civil rights.

Along similar lines, there is some concern among social conservatives that a colour-blind approach to race and civil rights law is a band-aid solution. Unequal outcomes are inevitable, and this inequality leads to accusations of discrimination and subsequent calls for remedy in the form of affirmative action, meaning that restoring colour-blind civil rights laws would eventually bring us right back to where we are now: affirmative action and DEI. 

Far on the other side of the conservative movement, a handful of Never-Trump type figures have been broadly supportive of the racial equity model. New York Times columnist David French memorably argued in 2021 that white Americans owe an intergenerational debt to black Americans because of slavery and discrimination, to much criticism from his fellow conservatives. 

Donald Trump praised the Supreme Court decision which struck down racial discrimination in college admissions in 2023 and championed the colour-blind approach during his time in office, barring the federal government and military from engaging in hiring practices that stereotype or scapegoat on the basis of race. One target of this mandate was a federally funded lab claiming “rationality over emotionality” was a characteristic of “white male[s]” and asking individuals to “acknowledge” their “privilege”. 

As the de facto leader of the conservative movement in the US, Trump will set the tone over the coming year through his campaign. If elected, his appointees and hiring decisions will give a strong indication as to which route the Right will take on civil rights. 


is UnHerd’s US correspondent.

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Jim Veenbaas
Jim Veenbaas
5 months ago

Really, are any influential people on the right in America calling for the abolition of the civil rights act? I’ve never heard of Richard Hanania and Charlie Kirk is more like a sideshow. I’ve seen some funny clips of him dunking on woke kids – easy pickings – but none of the people I pay attention to ever talk about Charlie Kirk.

Benedict Waterson
Benedict Waterson
5 months ago
Reply to  Jim Veenbaas

Hanania is a bit of a weirdo. Occasionally interesting substack writer

Ethniciodo Rodenydo
Ethniciodo Rodenydo
5 months ago
Reply to  Jim Veenbaas

Have a look at Age of Entitlement by Christopher Caldwell https://www.amazon.co.uk/Age-Entitlement-America-Since-Sixties/dp/1501106899

rob clark
rob clark
5 months ago

Great read!

Ethniciodo Rodenydo
Ethniciodo Rodenydo
5 months ago
Reply to  rob clark

Alternatively there is a good review of it here https://claremontreviewofbooks.com/the-law-that-ate-the-constitution/

Sensible Citizen
Sensible Citizen
5 months ago
Reply to  Jim Veenbaas

The opposite is true. Conservatives want a color-blind society. As do the center left. It’s the DNC idealogues, who are not liberals, who use identity politics to consolidate power and divide the country.
As has been the case historically, the Republicans are on the higher moral ground, similar to their advocacy for unborn life and the rape and slavery on the Southern border. Democrats have in the past led on some very important policy ideas, but civil rights have never been their strong point. It’s a weapon, and their embrace of civil rights is disingenuous at the level of power (however, not at the level of the individual Democrat voter).
Ironically, center-left liberals who vote Democrat know via their brains and hearts that Trump is right. But it takes courage and humility to admit the party is wrong.

Steve Jolly
Steve Jolly
5 months ago

Personally, I have always been skeptical of the government meddling in the private sector. Two things can be true. First, the treatment of black Africans, both during the slavery and post-reconstruction era, was deplorable and something needed to be done about it. Second, criminalizing racial discrimination in the private sector was a slippery slope that allowed, and indeed almost required, judges, prosecutors, and politicians to make broad moral judgements on things the government had never before had any legitimate business in. It couldn’t be as simple as a prosecutor indicting so and so for hiring Bob instead of Jane or Antoine or Luis and asking a judge to render a verdict on it. That would be nigh impossible to prove beyond a reasonable doubt. How can discriminatory intent in a single person be proved through facts? It obviously can’t be, so the lawyers had to find another legal avenue. They couldn’t prove discrimination at the individual level but they could prove it existed by comparing outcomes on a larger scale. By comparing outcomes they could show that somebody at some level was not hiring minority X at the same rate as whites, and therefore must be discriminating based on race. Lawyers simply proved discrimination the only way they ever could, at the macro level, and then once the precedent got established, the law was extended down to the individual level.
It was a bad law written in a broad and sweeping fashion for an issue that is historically unique to the US and very specific in nature, that is discrimination against blacks in particular and the legacy of chattel slavery. We’d have been better off to cut every black person a check for a million dollars, called it reparations for slavery, and left the law to deal with actions rather than attitudes. Instead people at the time opted for the more idealistic, but impractical, solution of criminalizing the natural preference most of us have for people who are like ourselves in whatever way meaningful or not. It was bound to go too far eventually, and it did. When entrepreneurs are asked to violate their religious convictions making wedding cakes for gay couples and said gay couples feel compelled to take the matter to court rather than, I dunno, go to another bakery, it’s a clear sign that we’ve long since gone beyond addressing Jim Crow segregation and the legacy of slavery and moved into the realm of legislating morality and punishing people for believing in things not approved by the government. When a law is used to promote a set of beliefs and values, it is tantamount to a government endorsement of religion, regardless of what the beliefs and values being promoted actually are.
Now we’re probably stuck with it because the Civil Rights Act has far more symbolic value than actual value. Most of the things it was written to prevent don’t exist now and wouldn’t exist anyway if it were repealed. There’s not a state in the US that would pass a Jim Crow law and other than maybe a few at the smallest levels, no for-profit corporation is going to purposefully hire only men or only white people or whatever. They’re going to simply hire whoever they want. If they feel they need to hire more blacks even if they’re less qualified, they are free to do so.I don’t see most Americans having enough appreciation for subtle details to understand that. To far too many, any attempt to repeal it would be seen as trying to re-institute Jim Crow.
Trying to weaponize the civil rights act towards conservative ends is probably the more practical strategy. It’s been successful lately as racial quotas at universities were recently declared unconstitutional. In one of the great ironies, without the Civil Rights Act, the types of racial quotas the universities were implementing would have been completely legal. Will this solve the problem? No. It’s still a bad law and it’s still enforcing a moral imperative. It’s still going to encourage people and organizations to use courts rather than elected leaders to decide social/cultural issues. It’s still going to cause no ends of headaches for both sides. It will, however, be something closer to a fair fight. What’s good for the goose…

Sensible Citizen
Sensible Citizen
5 months ago
Reply to  Steve Jolly

Enforcing a constitutional right that was, before Obama, a pathway to the enlightened color-blind society that virtually every American wants, is NOT weaponization.

Steve Jolly
Steve Jolly
5 months ago

Not exactly no, but using court proceedings to push agendas has serious consequences as it bypasses the democratic process and puts broad policy decisions in the hands of individual judges. By using court proceedings and asking judges to determine what the law means, they are effectively using the courts as a legislative tool. Rather than Congress passing a law or the people having a referendum on say, whether or not racial quotas are acceptable for universities, it’s put in the hands of a judge, and it’s become painfully obvious that judges are just as biased and just as partisan as the politicians who appoint them. The illusion of judicial autonomy has been hopelessly shattered. It’s clear the judicial system is in dire need of some reforms that recognize the fact judges can be partisan actors who broadly favor a particular set of interpretations of the law that correspond broadly to a political agenda. Chances of that happening are roughly zero, so in the absence of that, both sides can play the game, and use the courts in the same way to aggressively challenge the policies of the other side. This is what I mean when I say weaponization. The courts are the weapon rather than the law.

T Bone
T Bone
5 months ago

Charlie is a bit like Tucker. He’s highly intelligent but not all that disciplined. He will opine on highly controversial subjects before assessing the downside. This is Trump’s appeal. He says controversial things that nobody will touch and even if he’s mostly wrong, it will set off a larger conversation about a subject that’s been deemed off limits. It creates a bit of a return to the Socratic method that leaves no stone unturned.

Rufo and Lindsay on the other hand have been very methodical and deliberate at identifying the sources of bureacratic rot. Lindsay did a good piece on how bureacracies actually function. Hannah Arendt wrote about the Banality of Evil to describe Eichmann’s role in the Holocaust. The Bureacrats administering them are often just ordinary paper pushers checking a box off a list and maybe hoping to get ahead in their careers.

Bureacracy is an evolving Leviathan with new limbs sprouting every time a novel lawsuit is filed. So called “Experts” proliferate everywhere. If the Chevron Doctrine is overruled it should take a lot of authority away from the federal bureacracy.

Conservatives need to chill out. You’re not going to “win” overnight and by the time you do achieve your goals, you won’t even realize you’ve won because you will have moved on to some new problem.

Jeremy Bray
Jeremy Bray
5 months ago

Should not Democrats hang their head in shame when the despised Trump talks more sense and displays more sound morality on the subject of race discrimination than all their party can muster?

Steven Carr
Steven Carr
5 months ago

What a fantastic job Civil Rights and Affirmative Action have done for Black people in America since being passed.
Two generations have now grown up, emancipated and empowered by these measures.
To give just one example, desegregating schools has meant that Black children are now able to study in the superior, high-results schools that were once reserved for white children.

Sensible Citizen
Sensible Citizen
5 months ago

Since 1964, it has been illegal in the states to discriminate based on race, gender, religion, or age (specifically, those over age 41).
The Supreme Court later interpreted “gender” to include sexual preference.
Advocating for the law of the land is not “weaponizing” the Civil Rights Act. It is an attempt to prevent the pervasion of one of America’s most basic and enlightened rights in the service of dividing the country via identity politics.
The center-left is overwhelmingly in agreement with the center-right on this issue.