Georgetown University Law Center Georgetown University Law Center
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2014
Toward a Jurisprudence of the Civil Rights Acts Toward a Jurisprudence of the Civil Rights Acts
Robin West
Georgetown University Law Center
, west@law.georgetown.edu
This paper can be downloaded free of charge from:
https://scholarship.law.georgetown.edu/facpub/1299
http://ssrn.com/abstract=2363036
Robin West, Toward a Jurisprudence of the Civil Rights Acts, in A NATION OF WIDENING
OPPORTUNITIES? THE CIVIL RIGHTS ACT AT FIFTY, (Samuel Bagenstos and Ellen Katz, eds.,
University of Michigan Press forthcoming 2014)
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Part of the Civil Rights and Discrimination Commons, Construction Law Commons, Jurisprudence Commons,
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Toward a Jurisprudence of the Civil Rights Acts
Robin L. West
What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act
1
legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to
think of civil rights and particularly those that originated in the 1964 Act, as
antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be
discriminated against, by employers, schools, landlords, property vendors, hoteliers,
restaurant owners, and providers of public transportation, no less than by states and state
actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil
rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-
constitutional rights to be free of discrimination in the private as well as public world.
2
But
this conventional lawyerly understanding—basically, that “civil rights” are
“antidiscrimination rights”—is clearly inadequate, certainly with respect to civil rights
generally but also, and more tellingly, even with respect to the rights created and then
protected by the ’64 Act itself.
First, on the general point: some of the “civil rights” sought or held across our history
have not been antidiscrimination rights of any sort at all—labor rights, welfare rights, free
speech rights, and the constitutional rights of criminal defendants have all, at various times,
been championed as “civil rights,” and these rights are neither logically nor jurisprudentially
tied to any conception of antidiscrimination.
3
But furthermore, even the “civil rights” which
are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as
by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion,
1
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2013).
2
The identification of civil rights with the antidiscrimination norm is ubiquitous in
contemporary scholarship on the Civil Rights Act. See, e.g., Bruce Ackerman, The Living
Constitution, 120 HARV. L. REV. 1737, 1779–80 (2007); William N. Eskridge, Jr. & John
Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1237–38 (2001); Rebecca E. Zietlow, To
Secure These Rights: Congress, Courts and the 1964 Civil Rights Act, 57 RUTGERS L. REV.
945, 946 (2005). For an historical account of how this identification became entrenched in
twentieth century legal thought, and an attempt to reclaim earlier meanings, see
RISA L. GOLUBOFF, THE LOST PROMISE OF CIVIL RIGHTS (2010) [hereinafter GOLUBOFF,
LOST PROMISE]; Risa L. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil
Rights, 50 DUKE L.J. 1609 (2001) [hereinafter Goluboff, Thirteenth Amendment].
3
Labor rights in particular were identified and then fought for as “civil rights” through the
first half of the twentieth century, not just in common parlance, but also by the Justice
Department’s Civil Rights Section lawyers charged with the duty of enforcing them. See
Goluboff, Thirteenth Amendment, supra note 2, at 1616–18; see generally William E.
Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 4-6 (1999) [hereinafter
Forbath, Caste]; William E. Forbath, Civil Rights and Economic Citizenship: Notes on the
Past and Future of the Civil Rights and Labor Movements, 2 U. PA. J. LAB. & EMP. L. 697
(2000) [hereinafter Forbath, Past and Future].
1
simply our rights not to be discriminated against on the basis of impermissible
characteristics. Rather, the “civil rights” of which we cannot be discriminatorily deprived,
whether originating in the ’64 Act or elsewhere, are, after all, rights to something: to vote,
4
to
physical security,
5
to enter contracts,
6
to own, buy, or sell property,
7
to legal recourse in the
aftermath of a wrong committed against us,
8
to write a will,
9
to be considered for or to hold
down a job and to be paid fairly for our labor,
10
to the use of a restaurant or a hotel or a city
bus,
11
to a public education,
12
to marry whom we love.
13
And, these are just some of the
public goods that have been recognized at various times as “civil rights,” of which we cannot
be deprived by discriminatory action.
Even if just that much is correct, then the “civil right” protected by all of our Civil
Rights Acts, including the ’64 one, is considerably more complex, jurisprudentially, than the
conventionally legalistic and formulaic equation of “civil rights” with “antidiscrimination
rights” suggests. Minimally, the “civil right” recognized or protected by the various Civil
Rights Acts is almost invariably a multilayered right, or a “right to a right”: it is a right to not
4.
See Voting Rights Act of 1965, Pub. L. 89–110, 79 Stat. 437 (codified as amended in
scattered sections of 42 U.S.C.) (2013) (“All citizens of the United States who are otherwise
qualified by law to vote . . . shall be entitled and allowed to vote at all such elections, without
distinction of race, color, or previous condition of servitude.”); see also the Civil Rights Act
of 1957, Pub. L. No. 85-315, 71 Stat. 634 (1957) (current version at Voting Rights Act of
1965); Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86 (1960) (current version at
Voting Rights Act of 1965).
5
Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866) (emphasis added):
And such citizens, of every race and color, without regard to any previous condition of
slavery or involuntary servitude, except as a punishment for crime whereof the party shall
have been duly convicted, shall have the same right, in every State and Territory in the
United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit,
purchase, lease, sell, hold, and convey real and personal property, and to full and equal
benefit of all laws and proceedings for the security of person [execution, imprisonment] and
property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and
penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding.
See also Ku Klux Klan Act of 1871, 42 U.S.C. §§ 1983, 1985, 1986 (2013), also called the
Civil Rights Act of 1871 or the Force Act of 1871, which was intended to secure for African
Americans the protection of the criminal law against private violence.
6
Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866).
7
Id.
8
Id.
9
Id.
10
42 U.S.C. § 2000e (2013).
11
42 U.S.C. § 2000a (2013). See also Civil Rights Act of 1875, ch. 114, §§ 3-5, 18 Stat.
336, 337 (1875) (held unconstitutional in The Civil Rights Cases, 109 U.S. 3 (1883)).
12
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–88 (2013).
13
See United States v. Windsor, 133 S.Ct. 2675 (2013); Loving v. Virginia, 388 U.S. 1
(1967); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
2
be discriminatorily deprived of some underlying right. Only the first right in that phrase “a
right to a right” is the antidiscrimination right. The second “right,” though, is the underlying
civil right of which we cannot be discriminatorily deprived, and it is both itself complex and
highly variable: it might be a common law right, such as a right to enter contracts or sell
property, or a statutory right, such as a right to vote, or simply a right to a social or public
good, such as employment or educational opportunities, or the protection of a trustworthy
police force against private violence. And, while we have generated a library of writing, and
jurisprudence, and judicial opinions, on the nature of the first “right” in that phrase—the right
not to be deprived of various rights, on the basis of race, sex, and so forth—we have devoted
much less to the second: the nature of the underlying right of which we cannot be deprived.
So, what is the jurisprudential nature of that right? What is a “civil right,” jurisprudentially,
both with respect to the rights protected against discrimination by the Civil Rights Act of
1964, and more broadly? Again, and more generally, what is a “civil right”?
Oddly, I believe, and in spite of their unquestioned importance in our contemporary
public life, we are woefully short on a jurisprudential understanding of civil rights, both with
respect to the Civil Rights Act of 1964, whose fiftieth anniversary we celebrate this year, and
more broadly. Although we’ve recently seen an explosion of scholarship on the history, or
histories, of both the civil rights movement of the 1950s through 1970s, and of the Civil
Rights Acts they produced,
14
there has not been, either during or following our various
“legislative moments” ushering in civil rights laws, a body of scholarly work engaged in
reflective debate over the jurisprudential nature of the civil rights they sought to win and then
to protect. We simply do not have a scholarly jurisprudential canon that seeks to encompass
not only the nature of the antidiscrimination norm that our various civil rights acts codify, but
also the nature of the substantive underlying rights that all those rights against discrimination
protect. Legal scholars have, for better or worse, focused on judge-made law, and particularly
judge made constitutional law, when engaging in the work of discerning the overarching
principles of rights-based jurisprudence. Nowhere is this more clear than in the areas of law
and life touched by the Civil Rights Acts themselves. I will return to this problem below.
Here, I just want to note that for whatever reason, our scholarship on civil rights has
shortchanged the complexities of both the Civil Rights Acts, and of civil rights movements
and their product—civil rights—more broadly construed. We have focused our
jurisprudential scholarship almost entirely on the rights to nondiscrimination our Civil Rights
Acts created. But we have neglected the need to understand the nature of the underlying
rights of access to the social goods, systems of law, or institutions—contractual freedom and
14
See, e.g., GOLUBOFF, LOST PROMISE, supra note 2; Kenneth Mack, REPRESENTING THE
RACE: THE CREATION OF THE CIVIL RIGHTS LAWYER (2012); Bruce Ackerman, The Living
Constitution, 120 HARV. L. REV. 1737 (2007); Risa L. Goluboff, Lawyers, Law and the New
Civil Rights History, 126 Harvard L. Rev. 2312 (2013); Goluboff, Thirteenth Amendment,
supra note 2; Kenneth Mack, Rethinking Civil Rights Lawyering and Politics in the Era
Before Brown, 115 Yale L.J. 256 (2005) [hereinafter Mack, Rethinking Civil Rights]; G.
Edward White, The Origins of Civil Rights in America, 64 CASE W. RES. L. REV.
(forthcoming 2014) (available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2251425);
Rebecca E. Zietlow, To Secure These Rights: Congress, Courts, and the 1964 Civil Rights
Act, 57 RUTGERS L. REV. 945 (2005).
3
powers, property ownership, education, employment opportunities, public accommodation,
family life, and so on—that those nondiscrimination rights were designed to protect.
This is a neglect that matters, beyond the obvious problem that the neglect itself
fosters confusion, with disputants and debaters often talking at cross-purposes.
15
There are at
least two deeper worries. First, the lack of a jurisprudence of the Civil Rights Acts that
centers the underlying civil rights, and not just the antidiscrimination norm, likely reflects as
well as contributes to a lack of appreciation of the civil society, and of the law that facilitates
it, that “civil rights,” historically and today, both depend upon and produce. We have a well-
developed jurisprudential scholarship on the nature of rights, including natural rights, human
rights, legal rights, and constitutional rights.
16
And, we have a well developed body of
scholarship concerning civil society—but it is a peculiarly legally denuded civil society that,
thus far, we have studied: it is the “civil society” of voluntary bowling leagues and private
associations, often definitionally set apart from or in opposition to the legal society of the
15
For example, Jack Balkin’s review of Ackerman’s Holmes lecture on the history and
meaning of the Civil Rights Act of 1964, faults that essay for failing to account for the full
meaning of the “civil rights revolution” of the 1960s, which included, according to Balkin,
the rights of criminal defendants to Miranda warnings, habeas corpus, legal representation,
and so forth. Jack M. Balkin, A Review of Bruce Ackerman’s Holmes Lectures, “The Living
Constitution”, Part One, BALKINIZATION (May 29, 2007, 6:50 AM),
http://balkin.blogspot.com/2007/05/review-of-bruce-ackermans-holmes.html; Jack M.
Balkin, A Review of Bruce Ackerman’s Holmes Lectures, “The Living Constitution,” Part
Two, BALKINIZATION (May 30, 2007, 6:51 AM), http://balkin.blogspot.com/2007/05/review-
of-bruce-ackermans-holmes_30.html; Jack M. Balkin, A Review of Bruce Ackerman’s
Holmes Lectures, “The Living Constitution”, Part III, BALKINIZATION (May 31, 2007, 6:50
AM), http://balkin.blogspot.com/2007/05/review-of-bruce-ackermans-holmes_31.html; Jack
M. Balkin, A Review of Bruce Ackerman’s Holmes Lectures, “The Living Constitution,” Part
Four, BALKINIZATION (June 1, 2007, 6:50 AM), http://balkin.blogspot.com/2007/06/review-
of-bruce-ackermans-holmes.html. But without some sort of jurisprudential understanding of
the nature of a civil right, such that these rights of criminal defendants are core examples of
such rights, it is hard not to view this critique as simply arbitrary.
16
On the nature of rights, see, e.g., RONALD DWORKIN, LAW’S EMPIRE (1986); RONALD
DWORKIN, A MATTER OF PRINCIPLE (1985); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY
(1978); H.L.A. HART, ESSAYS ON BENTHAM: JURISPRUDENCE AND POLITICAL THEORY (1982);
WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS: AS APPLIED IN JUDICIAL
REASONING (Walter Wheeler Cook, ed., Yale Univ. Press 1964). See generally, THEORIES OF
RIGHTS (Jeremy Waldron, ed., 1984). On natural rights or human rights, see, e.g., JOHN
FINNIS, NATURAL LAW & NATURAL RIGHTS (2d ed. 2011); MARTHA C. NUSSBAUM, WOMEN
AND
HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2001) [hereinafter NUSSBAUM,
WOMEN AND HUMAN DEVELOPMENT]. On Constitutional Rights, see LAURENCE H. TRIBE,
AMERICAN CONSTITUTIONAL LAW (3rd sub ed. 1999). For critical treatments of our
constitutional rights tradition, see MARY ANN GLENDON, RIGHTS TALK: THE
IMPOVERISHMENT OF POLITICAL DISCOURSE (Free Press reprt. ed. 1993); Morton J. Horwitz,
Rights, 23 HARV. C.R.-C.L. L. REV. 393 (1988); Mark Tushnet, An Essay on Rights, 62 TEX.
L. REV. 1363 (1984).
4