Universalism and civil rights (with notes on voting rights after Shelby).

• Author: Bagenstos, Samuel R.
• Position: The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. EXAMPLES OF UNIVERSALIST APPROACHES TO CIVIL RIGHTS LAW A. A Working Definition of Universalism B. Examples of Universalistic Approaches to Civil Rights II. TACTICAL ADVANTAGES OF UNIVERSALIST APPROACHES A. The Tactical Argument for Universalism 1. Secure Political Support 2. Ensure Broad Judicial Implementation B. Problems with the Tactical Argument 1. Undermine Political Support and Dilute Judicial Willingness to Enforce 2. Become Coded as Serving a Particular Group III. SUBSTANTIVE ADVANTAGES OF UNIVERSALIST APPROACH ES A. The Substantive Argument for Universalism 1. More Effectively Address Discrimination 2. Address Broader but Important Problems of Inequality and Injustice B. Problems with the Substantive Argument IV. EXPRESSIVE ADVANTAGES OF UNIVERSALIST APPROACHES A. The Expressive Argument for Universalism B. Problems with the Expressive Argument V. NOTES ON VOTING RIGHTS AFTER SHELBY COUNTY A. Unpacking the Post-Shelby Universalist Proposals B. Critiquing the Post-Shelby Universalist Proposals CONCLUSION INTRODUCTION

After the Supreme Court invalidated the core of the Voting Rights Act's preclearance regime in Shelby County v. Holder, (1) civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act that targeted voting discrimination based on race or ethnicity. These responses instead sought to eliminate certain problematic practices that place too great a burden on any individual's vote. (2) I will call responses like these universalist (or, sometimes, universalistic), because rather than seek to protect any particular group against discrimination, they provide uniform protections to everyone (at least as a formal matter). As Bruce Ackerman shows in his latest We the People volume, voting rights activists confronted a similar decision regarding whether to pursue a universal approach--and at least some of them opted for universalism--during the campaign to eliminate the poll tax. (3)

The voting rights context is hardly unique. Across an array of different contexts, scholars and activists have proposed universalist responses to address problems that group-oriented civil rights approaches have not fully resolved. These contexts include affirmative action in higher-education admissions, regulation of the employment relationship, disability inequality, and the interpretation of the Fourteenth Amendment generally. (4) My own work has often advocated such universalist responses to civil rights problems. (5)

Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; (6) substantively, in aggressively attacking the structures that lead to inequality; (7) and expressively, in avoiding essentializing identity and emphasizing human commonality across groups. (8) But they have possible drawbacks along all three of these dimensions as well. Scholars who advocate universalist approaches to civil rights problems have too often conflated the tactical, substantive, and expressive arguments for these positions or simply focused on whichever of these dimensions supports a universalistic position without considering the others. These errors, I will argue, have led those scholars to be unduly sanguine about the effectiveness of universalism in the civil rights context.

To assess the effectiveness of universalistic approaches to civil rights--whether in general or in a particular case--requires examination of each of three dimensions: tactics, substance, and expressivism. As I hope to show in this essay, when considered along all of these dimensions, neither universalistic nor particularistic approaches can fully address our civil rights problems. Even in any specific context--whether voting, higher education, employment, disability, or the interpretation of the Fourteenth Amendment--a mix of universalistic and particularistic approaches is likely to offer the most traction in addressing those problems. (9) And determining the proper mix of policies will require a highly context-specific analysis. Nonetheless, there are some common dynamics of universalistic and targeted civil rights policies, and these dynamics offer lessons for policymakers approaching any given civil rights context. In this essay, I aim to draw out some of these general lessons and then sketch how they might apply to the civil rights context in which questions of universalism are most acute at the moment--voting discrimination. I argue, against Professor Issacharoff and others, that the response to Shelby County will fail unless it goes well beyond universal protections of voting rights. Rather, the voting rights regime must also provide robust protection against race discrimination specifically.

1. EXAMPLES OF UNIVERSALIST APPROACHES TO CIVIL RIGHTS LAW

   At this point, readers may be wondering exactly what I mean by universalist approaches to civil rights law, and how important the debate over universalism is to civil rights controversies. This Part provides some answers to these questions. I begin, in Section I.A, by offering the working definition of universalism that will guide my analysis in this essay. As I explain, mine is not the only definition of universalism one could employ, and I do not offer it as a way to draw a crisp line between what does and does not come within the category. Rather, I offer it simply as a serviceable device for identifying and assessing an important phenomenon in debates over civil rights law. In Section I.B, I identify a number of contexts in which advocates and scholars have urged universalist solutions to civil rights problems. I begin with an historical example from Professor Ackerman's book--the debate over the poll tax--before turning to present-day examples.

   1. A Working Definition of Universalism

      As I show throughout this essay, scholars have proposed deemphasizing targeted approaches to civil rights problems and instead emphasizing universalist approaches across a range of contexts. But what do I mean by "universalist"? For purposes of this essay, I define a universalist approach to civil rights law as one that either guarantees a uniform floor of rights or benefits for all persons or, at least, guarantees a set of rights or benefits to a broad group of people not defined according to the identity axes (e.g., race, sex) highlighted by our antidiscrimination laws. What is crucial for my purposes is not just that members of different identity groups are entitled to be treated the same as each other under a universalistic statute, but that we can determine each individual's entitlement without considering identity groups at all. By this definition, a law that guarantees all workers $10 per hour would be universalistic. But a law that prohibits race discrimination in wages would not. Under the former law, we can determine whether a worker's rights have been violated without identifying her race or the race of anyone else. Under the latter law, by contrast, we must identify the race of the worker who asserts a violation of her rights, as well as the race of the workers whom she alleges received better treatment, to make a cross-racial comparison. (10)

      Nothing in my argument depends on the category of universalistic approaches having a tight and impermeable boundary. The quality of universalism may be best understood as lying on a spectrum, running from more to less universalist. What I call universalistic strategies are often closely intertwined in practice with strategies targeted to particular groups or axes of discrimination. Indeed, my basic argument is that most civil rights problems are best addressed by a mix of strategies, though the solutions to some should place more emphasis on universalism and the solutions to others should place more emphasis on targeting.

   2. Examples of Universalistic Approaches to Civil Rights

      As Professor Ackerman's latest We the People volume highlights, arguments in favor of universalistic approaches are hardly new. As Ackerman shows, in the decades-long fight to eliminate the poll tax, advocates pursued two different strategies. Many civil rights advocates saw the poll tax as one of several means by which states discriminated against African-American voters. Others, including President Franklin Roosevelt and even politicians such as Senator Spessard Holland who supported racial discrimination in voting, saw the problem of the poll tax in more general populist terms. (11) They sought a flat ban on the use of the poll tax as a voting qualification, without any inquiry into whether or when it discriminated on the basis of race. The universalistic approach prevailed in the Twenty-Fourth Amendment, which prohibited using the poll tax as a qualification for voting in elections for federal office. (12) Professor Ackerman shows that section 10 of the Voting Rights Act, which directed the Attorney General to challenge poll taxes in states that still employed them, (13) contained elements of the universalistic and of the targeted approaches. (14)

      The Supreme Court ultimately chose the universal path to invalidating the poll tax in Harper v. Virginia State Board of Elections. (15) As Professor Joey Fishkin describes the developments in voting rights law in the 1960s and early 1970s: "Rather than simply dismantling race discrimination in voting, American law took a dramatic universalist turn, sweeping away almost all the bases of suffrage restriction that remained in 1960 and establishing a nationwide norm of universal adult suffrage tied closely to individual citizenship." (16)

      In recent years, scholars have argued that voting rights law is increasingly turning (and should increasingly turn) toward Harper's universalistic approach. Professors Sam Issacharoff and Rick...