Rethinking rights after the Second Reconstruction.

AuthorFord, Richard Thompson
PositionThe Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. HEROIC RIGHTS II. DISCRIMINATION AND DUTY CONCLUSION INTRODUCTION *

Anniversaries are times to celebrate past glories, but they are also times to reassess and consider new directions for the future. The fiftieth anniversary of the Civil Rights Act of 1964 offers an opportunity to do both.

When it comes to outright discrimination and overt prejudice, civil rights have been remarkably successful. But today's most serious social injustices aren't caused by overt bigotry. For instance, in the context of race, they stem from segregation--a legacy of past racism but not by and large the result of ongoing discrimination--and the many disadvantages that follow from living in isolated, economically depressed, and crime-ridden neighborhoods. Civil rights litigation and activism have hardly made a dent in these formidable obstacles. Civil rights are an important part of many social justice struggles, but they are subject to the law of diminishing returns. Rights can offer limited improvements in a narrow set of circumstances, but the effectiveness of the civil rights approach diminishes and its costs increase as they are applied to more novel, complex, and elusive social problems.

In one sense, Title VII of the Civil Rights Act of 1964 is a prime example of such limitations. The Act relies largely on private litigation to enforce its mandate: the basic structure of anti-discrimination law is modeled on tort law. As a consequence, we have come to think of anti-discrimination law as a question of individual justice and private entitlement. The well-understood upside of this approach is that, at least in theory, every individual can assert his or her own rights without waiting for a cumbersome bureaucracy to implement comprehensive policy reform. But the downside of this approach will be familiar to critics of the tort system: private enforcement is chaotic and inefficient from a public policy perspective. Access to justice is limited by constraints of time, familiarity with the legal system, and resources. Incentives to sue are not closely related to the strength of the plaintiffs claim or the culpability or social injuriousness of the defendant. As a result, enforcement of the law is spotty and arbitrary: disappointing to employees who often find pressing their rights in court too hard or too uncertain and frustrating to employers who face a constant risk of unexpected lawsuits.

But Title VII contains the seeds of an antidote to these ailments. The Act is a compromise between tort-like private enforcement and comprehensive regulation of the economy in the public interest. The Equal Employment Opportunity Commission (EEOC) represents the public enforcement side of the Act: an administrative agency with the authority to work out detailed rules for the implementation of a broadly defined congressional scheme. Unfortunately, the terms of the compromise created a defanged EEOC and subsequent amendments only slightly augmented the agency's power: it gained the authority to bring suit directly in 1972, (1) but it still cannot issue binding rules or impose fines or orders directly.

As Bruce Ackerman suggests in his fascinating history of the period, the successes of the civil rights movement owe more to the popular branches of government than to the courts. (2) Ackerman's account of the indispensable role of Congress and of President Johnson and the less-well-known role of President Nixon in advancing civil rights can help reframe our thinking about how the law of equality has worked and can work in the future. By placing the often glamorized role of courts in its proper context and by expanding our conception of constitutional history to include the seemingly mundane and often reviled business of administrative regulation, Ackerman's work calls for a long overdue reassessment of our unfinished struggle for racial justice.

This short essay is a modest attempt to take up that challenge. In Part I, I'll argue against what I will call the heroic idea of civil rights--the familiar idea that civil rights are inherent in each individual and should be understood standing stalwart and self-sufficient, without reference to collective public policy goals. In its place, I will argue for a more realistic or "disenchanted" idea of rights as a contingent decision to enforce public policy through private action--only a part of a larger approach that includes comprehensive regulation in the public interest.

The disenchanted idea of rights would let us reframe much of anti-discrimination law. In Part II of the essay, I'll argue that we should think of Title VII not as guaranteeing an individual entitlement against discrimination, but rather as defining an employer's duty to avoid decisions that cause inequality. I will suggest that this idea is already implicit in much of current anti-discrimination law, but it is at war with other parts of the law that privilege the heroic idea of rights as inalienable individual entitlements. Rethinking anti-discrimination law in terms of an employer's duty of care could provide more effective deterrence, thereby benefiting more employees while at the same time offering employers clear direction on how to comply with the law.

  1. HEROIC RIGHTS

    The heroic idea of civil rights is that they protect the individual from a potentially oppressive state. A slight extension of this idea--especially congenial to liberals--is that rights protect individuals from an oppressive state and from oppressive private institutions that are large or influential enough to be "like" the state in some meaningful way. The first iteration of this extension appeared in cases like Marsh v. Alabama, (3) which applied constitutional standards to private entities that served a "public function." Shelley v. Kraemer (4) involved a similar extension of constitutional rights to private action. There, the formal holding was that the enforcement of private racial covenants through the courts was a form of state action. But since this principle, taken to its logical conclusion, would transform the terms of any private agreement into state action the moment it required enforcement, it has long been supposed that a similar functional analysis explains the result: racial covenants mimicked the racial zoning invalidated by the courts in 1917's Buchanan v. Warley. (5) And the idea also implicitly underwrites the growth of the regulatory state in areas such as employment and labor law and environmental regulation.

    But underlying this imprecise functional analysis (no one ever quite defined "public functions" precisely except to say, tautologically, that they are functions typically performed by public entities) was a more coherent and more radical idea, advanced by American legal realists such as Robert Hale (6) and Morris Cohen (7): because the state enforces property entitlements and contracts, all private action is underwritten by state power, hence the public/private distinction could have no fundamental normative force.

    It follows from this insight that rights are not a special protection against power; they are a political decision to assign power to one party or another. Rights are not a limitation on power; they are a way of distributing power and resources. I take this to be one of the implications of Wesley Hohfeld's famous deconstruction of the concept of "rights," (8) in which he demonstrates that the term "right" may have many different meanings in practice, each of which involves a relationship of entitlement and corresponding obligation between two or more individuals. This also suggests (though this is a larger claim and demands more elaboration than I can provide here) that there is no moral or normative distinction between formal constitutional rights and the entitlements created by statutory law--both simply reflect a collective decision to assign a legal entitlement of some kind to one or another party. This is why, as Ackerman's account suggests, the entitlements defined in the Civil Rights Act can be considered constitutional rights. I'll call this the disenchanted idea of rights. (9)

    Here Professor Ackerman's idea of informal constitutional change offers a sociological and historical account of higher law. While I am less certain than Professor Ackerman that this account sharply distinguishes constitutional law from mundane statutory and common law, I find his nuanced and contextual account of constitutional law more convincing than its originalist or textualist competitors. That said, the disenchanted idea of rights does not require--and perhaps does not allow for--a theory of constitutional legitimacy. There is no notion that the legal entitlements we currently enjoy are the product of natural law, or are inherent in the very idea of democracy, or are necessary to meaningful citizenship or essential to a republican form of government. Rights have no justification other than that they are part of our political and legal tradition and emerge from the political and legal institutions and practices that most citizens accept. Nor do rights guarantee or underwrite the legitimacy of the social or political order; instead rights are a product of the social and political order.

    Viewed from one perspective, this conception of rights is radically critical: there is no justification for the political order or the rights that flow from it; all political regimes impose a contingent form of social organization and law's primary function is to control dissenters, deviants, and discordant elements. Here we might say, along with Michel Foucault: "Humanity does not gradually progress from combat to combat until it arrives at universal reciprocity, where the rule of law finally replaces warfare; humanity installs each of its violences in a system of rules and thus proceeds from domination to domination." (10) Hence rights can be another means of installing violence--a new type of domination in the form...

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