The term civil rights refers to the legal rights that protect the individual natural rights of citizens and enable civic participation in civil society. Unlike natural rights, which exist by nature and are discussed separately, civil rights must be created by legislation; they depend on law.

Civil rights typically include:

-The right to vote in elections, including legal qualifications of age, citizenship, and residency, and where, when, and how to vote.

-The right to a trial by jury when accused of a crime.

-The right to be elected to and hold government office.

-The right to be secure in one’s home from unjust government intrusion.

-The right to own property and prove ownership in court.

-The right to sue fellow citizens for damages or breach of contract.

Elections, trials, government offices, and property titles require legal frameworks. Their purpose is to acknowledge and protect the natural rights of citizens. Thus, the right to vote supports the natural right to legitimate government by consent. The civil rights movement can be said to succeed when civil laws provide equal protection for the liberty and property of every United States citizen.

Yet, civil rights have become a source of political controversy. To see why, we must revisit the 1960s.

The 1960s

The 1960s in important ways transformed the American regime. Nothing symbolizes this shift more than the Civil Rights Act of 1964, a constitutional turning point.

With Democrats controlling Congress, about 60% of them voted in favor, joined by over 80% of Republicans. President Lyndon Johnson signed the Act on July 2, 1964. Prompted by civil rights protests, Ku Klux Klan violence, and televised brutality in the South, the Act’s scope was unprecedented: banning racial discrimination in voting (Title I), public accommodations (Title II), public facilities (Title III), and schools (Title IV). It also expanded the jurisdiction of the federal Civil Rights Commission (Title V), which now has oversight over all businesses and organizations receiving federal funding (Title VI).

Barry Goldwater, then a U.S. Senator and a champion of racial desegregation in his home state of Arizona, voted against the Civil Rights Act primarily due to his opposition to Title II (covering businesses labeled as “public accommodations”) and Title VII (employment discrimination within private businesses).

As Senator Goldwater explained, the Constitution grants the federal government no authority to command or control who United States citizens invite into their privately-owned businesses—which is private property—with whom they must trade, or to whom they must offer jobs, just as government has no constitutional power to command who citizens invite into their homes, or with whom they must be friends.

Goldwater was correct. And, few people cared. Most Americans viewed the Civil Rights Act as moral redress and atonement for past racial injustices. Unlike Goldwater, many Americans did not care if the act was Constitutionally illegitimate. For them, it was morally legitimate and that’s all that mattered.

The long-term effect was to recast government’s authority. Before 1964, legitimacy rested on the consent of the governed, with powers limited by the Constitution. After 1964, legitimacy increasingly derived from government’s role as guarantor of ever-expanding civil rights.

The New Regime of Civil Rights

From a progressive perspective, expanding civil rights is the measure of social “progress.” Civil rights, once confined to voting or jury trials, came to include attending a public school, swimming in a public pool, or dining in a restaurant regardless of the owner’s wishes. Since 1964, nearly every progressive cause has been framed in this language: recognition of transexual pronouns, higher minimum wages, subsidized health care, subsidized housing, climate policy, etc.

Once a political agenda is labeled “civil rights,” it acquires moral authority. The problem is that the new progressive regime of civil rights requires unlimited government power. A “civil right” to higher wages or to a carbon-neutral environment or to being called the pronouns someone currently prefers, demands extensive regulation, litigation, and bureaucratic enforcement—beyond anything envisioned in the Constitution’s enumeration of limited powers.

Discrimination

The second pillar of the new regime is a redefinition of discrimination. The word derives from the Latin discriminare (“to distinguish”) and is closely related to another Latin term, discriminis, meaning “a dividing line” or “distinction.” To be discriminating used to be understood as discernment—knowing, for example, the difference between an original work of high art versus cheap graphics adorning mass-produced t-shirts.

Today, the word carries only negative connotations. To discriminate is largely understood as morally offensive and likely illegal. Since 1964, millions of pages of regulations have sought to root out discrimination in every sphere of life in the United States.

Yet everyone discriminates daily—every person chooses friends, food, schools, and news sources. The universal moral stigma now attached to the word, however, makes defending freedom of choice difficult. No one, after all, wants to be known for opposing “civil rights.”

Where We Are

We now inhabit a post-constitutional regime in which progressive civil rights redefine the very basis of government authority. Questions about whether the Constitution grants the powers those in government exercise are waved away—the proper purpose of government is typically ignored—as distractions from the urgent work of creating and enforcing new “rights.”

Reversing this paradigm will not be easy. But it cannot be done at all unless we first understand where we are and how we arrived here. The original understanding of civil rights—rooted in the principles of the American Founding and including core civic functions such as voting, jury trials, and holding elected office—was right and fitting for a self-governing constitutional republic.

The new notion of “civil rights” that emerged during the 1960s—labeling every progressive policy as a “civil right,” whether constitutional or not—is both problematic and, at some basic level, incompatible with the original meaning of the term. Either citizens have a civil right to their own private property; or government has the rightful power to take private property in order to fund and provide “civil rights” to others.