Yet time after time, the left seems to win both ideological and legal battles on monumental issues such as abortion, marriage, gun control, immigration, racial preferences for minorities, and the ever-expanding size and scope of government — no matter what the text of the Constitution actually says.
In The Age of Entitlement: America Since the Sixties, (2020; ISBN 978-1-5011-0689-7) author Christopher Caldwell advances the thesis that the Constitution of 1788 has been effectively nullified by our elites and supplanted with a "new constitution" that originated in, and reflects the values of, the "Civil Rights Era" of the 1960s. Though the civil rights movement began as a reformist movement within the old order, it evolved into a "revolution" that has nearly triumphed over the polity created in the 18th century:
The changes of the 1960s, with civil rights at their core, were not just a major new element in the Constitution. They were a rival constitution, with which the original one was frequently incompatible[.] ... Much of what we have called "polarization" or "incivility" in recent years is something more grave — it is the disagreement over which of the two constitutions shall prevail: the de jure constitution of 1788 ... with 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 liberation.
Caldwell argues that the new "de facto constitution" has been used to supersede the Bill of Rights and the black-letter law of the traditional Constitution. Forced busing and forced integration violated the First Amendment right to freedom of association, as did affirmative action for blacks and women. Racial and sex-based preferences offend the Equal Protection Clause of the Fourteenth Amendment. These policies were enacted despite opposition from most Americans. Speech codes and political correctness designed to cater to the sensitivities of minorities infringe on the right to freedom of speech and freedom of the press. The "right" to an abortion, which existed nowhere in the traditional Constitution and was opposed by a majority of the people (with limited exceptions), was essentially created by the Supreme Court.