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Not long after he left the White House, Bill Clinton gave what is still thebestdescriptionof the fault lines thatrun through American politics.If you look back on the60sand on balanceyou think there was more good than harm, youre probably a Democrat, he said. If you think there was more harm than good, youre probably a Republican.

What could hehavemeantby that?

Though Americans are reluctant to admit it, the legacy of the 1960sthatmost dividesthe countryhas its rootsin thecivil rightslegislation passed in the immediate aftermath of John F. Kennedys assassination. It was enacted in a rush of grief, anger and overconfidencethe same overconfidence that had driven Kennedy to propose landing a man on the moon and would drive Lyndon Johnson to wage war on Vietnam. Shored upand extendedbyvarious court rulings and executive orders,the legislationbecame the core of the most effective campaign of social transformation in American history.

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This campaignwas effectiveboth foritstypically American idealismand foritstypically American ruthlessness.ItauthorizedWashingtonto shape state elections, withhold school funds, scrutinize the hiringpractices of private businessesandsue them. It placed Offices of Civil Rights in the major cabinet agencies, and theseofficeswere soon issuinglegally bindingguidelines, quotas and targets. Above all, it exposed every corner of American social,businessand politicallife to direction from judges.

Americansassumed that solving the unique and extraordinary problem of segregation would require handing Washingtonpowersnever before granted in peacetime. In this they were correct.

But they were alsoconfident thatthe use of these powerswould be limitedin time (to a few years at most), inplace(to the South),and in purpose (to eliminating segregation).In this theymisjudged, with fateful consequence for the countrys political system.

Civil rights law may have started off as a purpose-built tool to thwart the insidious legalism of Southern segregation and the violence ofSouthern sheriffs. It would end up a wide-ranging reinvention of government.

After the work of the civil rightsmovementin ending segregation was done, the civil rightsmodelof executive orders,regulation-writingand court-ordered redressremained.

This was the so-called rights revolution:an entire new system of constantly churning political reform, bringing tremendous gains to certain Americans andsomething that is mentioned less oftenlosses to many who had notnecessarilybeen the beneficiaries of the injusticesthatcivil rightswasmeant to correct.

TheUnited Stateshadnot onlyacquiredtwocodesof rules(two constitutions), aspeoplerallied toone code or the other,theyalsosortedthemselvesintotwo sets of citizens(two countries).To each side, the others constitution might as well have been written in invisible ink.

Civil rightsbecamean all-purpose constitutional shortcut for progressivejudges and administrators. Over time it brought social changes in its wake that the leaders of the civil-rights movement had not envisioned and voters had not sanctioned: affirmative action, speech codes on college campuses, a set of bureaucratic procedures that made immigrants almost impossible to deport, gay marriage, transgender bathrooms.

In retrospect, the changesbegun inthe 1960s, with civil rights at their core, were not just a major new element in the Constitution. They were arivalconstitution, with which thepre-1964onewouldfrequentlyproveincompatibleand the incompatibility would worsen as the civil-rights regime was built out.

Our present political impasse is the legacy of that clash of systems.Much of what wetodaycall polarization or incivility is something more grave. It is the disagreement over which of the two constitutions shall prevail: thepre-1964constitution, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks this traditional 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 a liberation.

As long as thebaby boom generation was in its working years, permitting the country to run large debts, Washington could afford to pay fortwo social orders at the same time. Conservativescouldconsole themselvesthatthey, too,were on thewinningside of the revolution.They just stood against its excesses.Agoodcivil rights movementled bythe martyredRev. Dr. Martin Luther King Jr.had been hijacked, starting in the 1970s, by aradicalversionthat broughtaffirmative actionand eventuallypolitical correctness.

But affirmative action and political correctness were not temporary. Over time they hardened into pillars of the second constitution, shoring it up where it was impotent or illogical, the way the invention of judicial review inMarbury v Madison(1803) shored up the first constitution.

Bothaffirmative action and political correctnesswere derived fromthe basic enforcement powers of civil rights law. And this was the only civil rights on offer. If you didnt like affirmative action and political correctness, you didnt like civil rights.By2013, whenAmericans began arguing over whether acake makercould be forcedto confect a progay marriage cake, this was clear.

TheUnited Stateshadnot onlyacquiredtwocodesof rules(two constitutions)aspeoplerallied toone code or the othertheyalsosortedthemselvesintotwo sets of citizens(two countries).To each side, the others constitution might as well have been written in invisible ink.Democrats were the party of rights, Republicans ofbills.Democrats say, by 84 to 12 percent, that racism is a bigger problem than political correctness. Republicans, by 80 to 17 percent, think political correctness is a bigger problem than racism. The Tea Party uprising of 2009 and 2010, and its political mirror image, the Black Lives Matter uprising of 2015 and 2016, were symbols of that division.

Much happened this century to bring matters to the present boil.Barack Obama, both for his fans and his detractors, was the first president to understand civil rights lawin thewaydescribed here:as a de facto constitution by which the de jure constitution could beoverridden or bypassed. His second inaugural address, an explicitly Constitution-focusedargument, invokedSenecaFalls and Selma and Stonewalli.e., womens rights, civil rights and gay rightsasconstitutionalmilestones.

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In this view, the old republicbuilt onbattlefieldvictorieshad been overthrown by a new one built onrights marchesandSupreme Court jurisprudence.WhenJusticeAnthony Kennedywrotehisdecision inObergefellv. Hodges,the2015gay marriage case that was in many ways the culmination ofthis new rights-basedconstitution,he said as much.

The election of 2016broughtthe changeinto focus.Todaytwo nationslookat each other in mutual incomprehension across an impeachment hearing room.It appearsweare facinga constitutional problem of the profoundest kind.

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Christopher Caldwell: America's two constitutions since the '60s, competing visions of a more perfect union - Home - WSFX