You Can’t Say That is a truly important book, for it reminds us that no social revolution, even the most morally justified, is costless. The Civil Rights Act of 1964 did indeed precipitate a social revolution, one that at long last began to deliver on the promise of the Emancipation Proclamation. Over the nearly half-century since its passage much has changed in America, and for African-Americans that change has been both grievously overdue and remarkable in its sweep, although still very much a work in progress. However, this is not a book that catalogues the successes of the antidiscrimination movement that burgeoned in the wake of the 1964 Act, but rather an elegy to what must count on the other side of the ledger, to what has been compromised in the noble quest for racial equality. In this eloquent and accessible book, remarkably free from the lawyer’s propensity to stultify the laymen with a blizzard of case law, it is clear that the principal cost has been to First Amendment values, sacrificed too cavalierly when they conflict with antidscrimination principles.
One need only look to the publisher of Bernstein’s book, the Cato Institute, to see that the ideological landscape has been radically altered since the 1960s, when New Deal liberals still dominated the left, and the First Amendment comprised the heart and soul of their United States Constitution. Even earlier, before World War II, when Communists held sway on the left, the First Amendment was sacrosanct: to Communists it was their second favorite constitutional amendment, after the Fifth, prized as a stratagem to protect their freedom to subvert. For...
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...ork’s most prestigious museums did not display enough art produced by women. Housing and Urban Development officials used the Fair Housing Act amendments to intimidate neighborhood groups that sought to exercise their free speech rights to campaign against group homes for the disabled, while those charging discrimination have sometimes been allowed by courts to enter into evidence a defendant’s past political speech.
These examples are the tip of Bernstein’s iceberg. Even good causes can run amuck if fundamental constitutional principles are set aside: noble ends can be compromised by hasty or tainted means. This book is a red flag, which we ignore at our peril.
You Can’t Say That: The Growing Threat to Civil Liberties from Antidiscirmination Laws by David E. Bernstein. Washington, DC: CATO Institute, 2003, 197 pages, $20.00
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