Dwarfing all debates over civil rights policy and race relations during the three decades since 1964 has been the storm over affirmative action. Critics have argued that affirmative action in practice has meant requiring racial quotas, and hence practicing “reverse discrimination” against innocent (usually white male) third parties. This has been done, critics contend, in the name of a law, the Civil Rights Act of 1964, that explicitly prohibited racial preferences. Proponents have countered that racism is so deeply rooted in American culture and institutions that mere nondiscrimination will perpetuate the injustice of the past. There is abundant evidence to support both contentions. The purpose of this essay is not to weigh the evidence and determine which side is correct. Ultimately such profound disagreements are not resolvable by logic and evidence alone, because they hinge on divergent assumptions about human nature and the purpose and limits of government. My more modest goal in this essay is to use the insights of history to understand why civil rights policy evolved in this dual fashion following the breakthrough legislation of 1964–68, and to try to assess the consequences.

“ERA Won't Go Away!” The words were chanted at rallies and unfurled on banners at countless marches as the deadline—June 30, 1982—approached for ratification of the Equal Rights Amendment. To include in the Constitution the principle of equality of rights for women, supporters insisted, was an essential of republican government in a democratic society. Congress had shared that perception in 1972, passing a series of measures aimed at strengthening and expanding federal legislation banning discrimination on the basis of sex. Included was a constitutional amendment simply stating that “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.” Thirty-five of the thirty-eight states necessary for a three-fourths majority needed to amend the Constitution had given their approval.

In the countless conversations about U.S. immigration policy that I have had with Mexican Americans of varied backgrounds and political orientations, seldom have my interlocutors failed to remind me that “We were here first,” or that “This was our land and you stole it from us.” Even a moderate Mexican American politician like former San Antonio Mayor Henry Cisneros sounds the same theme in a national news magazine:

It is no accident that these regions have the names they do—Los Angeles, San Francisco, Colorado, Montana.…It is a rich history that Americans have been led to believe is an immigrant story when, in fact, the people who built this area in the first place were Hispanics.

On 26 July 1990, President George Bush signed an ambitious new civil rights law at an emotional ceremony held on the South Lawn of the White House. Passage of the Americans with Disabilities Act (ADA, PL 101–336) brought civil rights protections for people with disabilities to a level of parity with civil rights protections already enjoyed by racial minorities and by women. What accounted for a Republican administration enthusiastically endorsing a sweeping civil rights law that might benefit as many as 43 million people? Briefly put, historical traditions within disability policy that in turn reflected broader trends within social welfare policy between 1950 and 1990 allowed the ADA to be portrayed in conservative terms that were congenial to a Republican administration.

Comparing European and North American policies with respect to “civil rights” is a difficult exercise for two reasons. First, it is important to emphasize that Europe and the United States are not political entities of a same nature. Granted, the fact that the nations that today comprise Europe are heirs of common history explains in part the similarities in their political behavior and distinguishes them as a group from the “New World.” Yet in the American case, despite the country's federalist structure and the existence of fifty states within the Union, we are dealing with a single nation, endowed with a central government capable of generating policies that are valid throughout the territory. Such is not the case with Europe. As is well known, the European continent is divided into two sharply contrasted spheres. On the one hand, there is the East, thrown into confusion by the devastation of communism and mired in a profound economic crisis. On the other hand, there is the West, comprised of nations that share a level of economic prosperity comparable to that of the United States but which do not form a single political entity. At present, the European Economic Community includes only twelve European states; the remaining countries, such as Switzerland, Sweden, and Austria, have yet to become members. In this essay, the question of “civil rights” will be examined specifically in light of those countries that already belong to the EEC.

In the 1960s and 1970s, when the judicial rights revolution was in full swing in the United States, poverty lawyers and allied legal scholars urged the courts to add to the expanding catalog of constitutional rights certain social and economic rights—to housing, education, and a minimum decent subsistence. The advocates of welfare rights were not deterred by the absence of pertinent constitutional language. After all, if the Court could find a right to privacy in the “penumbra” of the Bill of Rights, who knew what else might be discovered there? Those efforts to constitutionalize what were historically matters of legislative discretion had only partial success. The Supreme Court did hold that, once government grants certain statutory entitlements such as welfare and disability benefits, the recipients have a constitutional right not to be deprived of those benefits without procedural due process. The Court declined, however, to find that the entitlements themselves were constitutionally required.