The Lost Promise of Civil Rights.

• Author: Zietlow, Rebecca E.
• Position: Book review

THE LOST PROMISE OF CIVIL RIGHTS. By Risa L. Goluboff. (1) Harvard University Press. 2007. Pp. viii + 376. $35.00.

1. INTRODUCTION

   When I was a legal services lawyer on the South Side of Chicago, my colleagues engaged in an ongoing debate over whether race discrimination cases fit within our mandate to practice "poverty law." On the one hand, race discrimination was a barrier to the ability of some of our clients to find good jobs and work their way out of poverty. On the other hand, race discrimination cases did not directly redress the poverty of our clients. Clients "lucky" enough to have a job where they experienced discrimination arguably needed our help less than those who depended on public benefits. Our thinking reflected the Court's interpretation of the equal protection clause which disaggregates the relationship between race and class. The Supreme Court's equal protection jurisprudence did little to help my African American clients on the South Side of Chicago. Even though the primary problem of our clients was poverty, race discrimination provided the only framework of anti-discrimination law to meet their needs. The Supreme Court long ago found that economic classifications do not trigger "heightened scrutiny" for equal protection analysis (3)--only race-based classifications get heightened scrutiny. Moreover, many statutes protect against race discrimination, but virtually none protect against discrimination on the basis of poverty. (4) Yet it was rarely possible for us to show that our client's legal troubles were caused by intentional race discrimination. (5) Our poor, Black clients needed a new formulation of their rights, which would take into account the confluence of race and class that limited their ability to improve their lives, and create positive measures to remedy it.

   Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. More than 50 years after Brown v. Board of Education (6) and 40 years after the 1964 Civil Rights Act, (7) people of color are still lagging behind whites in virtually every indicator of economic success. (8) Yet our race discrimination law is simply unable to address that frustrating phenomenon. In Brown, the Court established a paradigm by holding that racial segregation violates the equal protection clause of the Fourteenth Amendment. As a result of Brown and its progeny, a person has the right to be free from arbitrary and discriminatory treatment based on prejudice against that person's immutable characteristics. However, the Brown paradigm fails to account for the inter-relationship of race and class in the subordination of people of color in our society. At the dawn of the twenty-first century, we need a new way of thinking about civil rights. We need to move beyond the paradigm of equal treatment and towards a paradigm of more substantive equality rooted in the principle of anti-subordination.

   Instead of formal equality, a good starting point for rethinking civil rights is the concept of "belonging." (9) Rights of belonging are those rights that promote an inclusive vision of who belongs to the national community of the United States and that facilitate equal membership in that community. (10) Rights of belonging include economic rights because in order to fully belong in our society, people need more than simply the freedom from intentionally discriminatory treatment. They also need economic empowerment. (11) Risa Goluboff's recent book, The Lost Promise of Civil Rights, gives us a glimpse of what civil rights law would look like without the disaggregation of race and class, and provides a great background for understanding rights of belonging. In the book, Goluboff describes another tradition of civil rights from our history, based not in the equal protection clause of the Fourteenth Amendment but instead in the Thirteenth Amendment's promise of economic empowerment. Goluboff's lessons from the past can help us to re-envision civil rights law for the future by providing a basis for a fuller understanding of rights of belonging.

   In The Lost Promise, Goluboff provides three valuable contributions for anyone who teaches, studies, or has any interest in constitutional law and anti-discrimination law. First, she helps us to understand how the meaning of civil rights developed into what we understand today as civil rights, and details an alternative approach that was abandoned by the attorneys who litigated early civil rights cases. Thus, her second contribution is that she reminds us that the current paradigm is not the only way to think about equality law. Finally, and most importantly, she provides an eye-opening framework for re-thinking equality law to address more effectively the problems in our society today. In that framework, economic rights are paramount because the subordination of people of color in our society has never been just about race. Rather, racism has been used as a means to further the economic exploitation of workers.

   The Lost Promise has already received recognition as a ground-breaking work of legal history. (12) Goluboff's innovative work goes beyond other historical works on the civil rights movement because she not only explores the connection between the labor movement of the early twentieth century and the civil rights movement of the later twentieth century, but also examines the doctrinal connections between the two movements. (13) Her detailed description of the development of constitutional doctrine warrants the same recognition by constitutional scholars and theorists. For too long, constitutional theorists have also disaggregated the relationship of race and class when theorizing constitutional principles of equality. Informed by Goluboff's work, the theory of rights of belonging synthesizes racial equality and economic rights in order to effectively combat the subordination of all workers in our society.

2. THE BROWN PARADIGM AND THE EQUAL PROTECTION CLAUSE

   The equal protection clause is triggered when laws divide people into categories and treat categories of people differently. As any student of constitutional law knows, the Court first identified racial classifications as those that might warrant heightened scrutiny in Justice Stone's footnote four of U.S. v. Carolene Products (14) and reaffirmed that commitment in the case of Korematsu v. U.S. (15) In Brown, the Court overturned the 1896 case of Plessy v. Ferguson (16) and held that contrary to its ruling in Plessy, "separate" could never be "equal." (17) Since Brown, the Court has applied strict scrutiny to race-based classifications, striking down virtually every such classification, including laws requiring segregation in all government facilities (18) and those outlawing interracial marriage. (19) Thanks to the Brown paradigm, African Americans enjoy a constitutional right against government discrimination on the basis of race. By ending our racial caste system, Brown and its political companion, the 1964 Civil Rights Act, affirmed a fundamental human right.

   The Brown paradigm has its weaknesses, however. The Court has severely limited the scope of the equal protection clause by holding that it does not apply to private actors (20) and requiring a showing of discriminatory intent to trigger heightened scrutiny. (21) These holdings have greatly limited the potential of the equal protection clause to combat race discrimination. Moreover, as Equal Protection law has developed, it has developed doctrinal weaknesses. The concept of equal protection requires the comparison of identical groups of people. To oversimplify, only "likes" need be treated "alike." Determining whether groups of people are alike or different can cause uncertainty.

   This uncertainty is most apparent in the Court's treatment of the two principle "suspect classifications" that it has identified, those based on race and those on gender. When the law categorizes on the basis of race, treating the white majority differently from racial minorities, courts must consider whether whites and members of minority groups are alike. On the one hand, people are people, and the law correctly assumes that there are few if any inherent differences based on the color of one's skin. (22) Race is a social construct, not a biological difference. (23) However, centuries of racial discrimination and racial subordination have left their mark on our society, and on people of color in our society. Although there are few if any biological differences between Blacks and whites, it is hard to say that Blacks and whites are really equal in terms of the opportunities that they face, even in the twenty-first century. Given that there is significant evidence that whites and Blacks are not equal in terms of opportunities and resources, are they really alike? Or, is a person's race sufficiently predictive of one's economic and social success that people of color and whites really are not alike, and differential treatment is justified, at least when that treatment is geared towards improving the opportunities and resources of people of color?

   Currently, the Court has adopted the stance that whites and racial minorities are sufficiently alike that virtually any differential treatment violates the principles of equality. As Justice Scalia announced in his concurrence to Adarand, "In the eyes of our government, we are just one race here. It is American ..." (24) Because this view fails to account for the historic subordination of people of color in our society, the race blind approach to race based categories hampers the ability of racial minorities to obtain equality. The United States Supreme Court has applied this approach to strike down affirmative action measures intended to benefit racial minorities. (25) Thus, the current Supreme Court's approach significantly hampers the...