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Navigation </button> <div id="article-nav" class="nav-collapse collapse-sidebar in collapse"> <ul class="nav"> <li><a href="#toc">Entry Contents</a></li> <li><a href="#Bib">Bibliography</a></li> <li><a href="#Aca">Academic Tools</a></li> <li><a href="https://leibniz.stanford.edu/friends/preview/civil-rights/">Friends PDF Preview <i class="icon-external-link"></i></a></li> <li><a href="https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=civil-rights">Author and Citation Info <i class="icon-external-link"></i></a> </li> <li><a href="#pagetopright" class="back-to-top">Back to Top <i class="icon-angle-up icon2x"></i></a></li> </ul> </div> </div> </div> </div> </div>   <div id="article"> <div id="article-content">  <div id="aueditable"> <h1>Civil Rights</h1><div id="pubinfo"><em>First published Wed Nov 6, 2024</em></div> <div id="preamble">  <p class="smaller"> [<em>Editor’s Note: The following new entry by Robin L. West replaces the <a href="https://plato.stanford.edu/archives/fall2024/entries/civil-rights/">former entry</a> on this topic by the previous author.</em>]</p>  <p> The phrase “civil rights” is generally understood by American lawyers and judges as referring to various “nondiscrimination rights” created by the federal “Civil Rights Acts” of the 1960s through the 1990s. Those rights, themselves the product of the civil rights movement of the 1960s, aim to protect all Americans against adverse and discriminatory actions that might otherwise be taken against them on the basis of race, sex, religion, ethnicity, disability, and age in various spheres of social life, including employment, housing, banking and credit, public accommodations, education, and voting. These antidiscrimination rights were and are intended to end the practice, common during the Jim Crow era, of bestowing employment, educational, credit and housing opportunities and benefits unequally between members of different racial, sexual and religious groups, as well as disabled and older individuals.</p> <p> The phrase “civil rights” however has sometimes referred to a very different set of rights, both historically and globally, and also means something considerably broader in contemporary usage as well. In English Common Law, the phrase “civil rights” sometimes simply referred to those rights, possessed by citizens, that are the products of positive law, contrasting with “natural rights,” or “human rights,” which attach by virtue of one’s humanity. In the middle of the nineteenth century, the Reconstruction-era Congress in the United States passed the 1866 “Civil Rights Act,” which mandated that “civil rights,” understood in this generally legalistic way, must be extended equally to all, Blacks as well as whites, “regardless of prior condition of servitude.” Thus the Civil Rights Act of 1866 aimed to ensure that Blacks as well as whites should equally enjoy the protections of the civil law.</p> <p> Since the passage of that Act, the phrase “civil rights,” both in the United States and globally has most often been understood as referring to those laws and the rights they create which in some way aim for equality, rather than, as in earlier times, those rights created by all bodies of positive law. In contemporary usage, the phrase “civil rights” is broader still. In addition to antidiscrimination rights, and rights to the equal protection of laws, rights against police brutality and other unconstitutional actions taken by state officials are also now widely regarded as civil rights. More aspirationally, various movements for the enactment of new law that might create rights that don’t currently exist, but that would broadly protect human welfare, such as rights to social welfare, a clean environment, to privacy, or to safety against gun violence are sometimes understood as aiming for “civil rights.”</p> </div> <div id="toc">  <ul> <li><a href="#Int">1. Introduction</a></li> <li><a href="#CivRigRigEquProLaw">2. Civil Rights as Rights to the Equal Protections of Laws</a></li> <li><a href="#CivRigAntRig">3. Civil Rights as Antidiscrimination Rights</a> <ul> <li><a href="#LimAntPriConMeaVal">3.1 The Limits of the Antidiscrimination Principle: Contested Meanings and Values</a></li> <li><a href="#AntPriTod">3.2 The AntiDiscrimination Principle Today</a></li> </ul> </li> <li><a href="#CivRigRigFlo">4. Civil Rights as Rights to Flourish</a></li> <li><a href="#Bib">Bibliography</a> <ul> <li><a href="#Sta">Statutes, Treaties and Constitutional Provisions</a></li> <li><a href="#Tre">International Law</a></li> <li><a href="#Cas">Cases</a></li> <li><a href="#SecSou">Secondary Sources</a></li> </ul> </li> <li><a href="#Aca">Academic Tools</a></li> <li><a href="#Oth">Other Internet Resources</a></li> <li><a href="#Rel">Related Entries</a></li> </ul>  <hr /> </div> <div id="main-text"> <h2 id="Int">1. Introduction</h2> <p> There is little consensus and a dearth of scholarship—and even less actual law—on the meaning of the evocative and inspirational phrase “civil rights”. In antiquity, “civil rights” meant something like the rights of individuals created by private or civil law, and which attach by virtue of one’s citizenship in a polity (Justinian, <em>Institutes</em>). They included rights to marry, paternal rights over family members, rights to leave a will, rights to own, buy and sell property, and rights to contract. The possession of “civil rights”—rights defined by civil or private law—was part of what distinguished “citizens”, who had them, from “slaves”, who did not, as well as from “free people”, including all women and children, who might be under guardianship or in some other way incapacitated, and who accordingly lacked all or some civil rights, but were also not slaves. More recently, but still several centuries back, “civil rights” in English law were broadly understood to be those legal rights derived from the common law, such as the law of contract and property, that governed private life. In his authoritative <em>Commentaries on the Laws of England</em>, Sir William Blackstone contrasted “civil rights”, derived from the common law, with “natural liberties”, or “natural freedoms”, which attach by virtue of human nature or God’s will, some of which are given up upon entering civil society, in exchange for civil rights. He drew a second contrast as well: a “private wrong” was a violation of a “civil right”, involving disputes between individuals, and would lead, possibly, to a private lawsuit, in contrast to a “public wrong”, which was a crime against the sovereign and would lead to prosecution (Blackstone 1765–1769). In the eighteenth and the first half of the nineteenth century, “civil rights”, at least in the United States, apparently meant something like a subset of all those common law rights governing private life, but which are also in some meaningful sense “fundamental”. They included not only property and contract rights, but also rights to be free of privately inflicted injuries, rights of access to the courts for compensation when those rights were breached, rights to give testimony in courts, the right to marry, and the right to write and leave an enforceable will. That usage of the phrase informed the passage of the first generation of “Civil Rights Acts” enacted in the US in the aftermath of the Civil War, which sought to guarantee that those same legal, or, again, “civil” rights would be enjoyed by freedmen, as well as whites (Rutherglen 2012; Barnett & Bernick 2019, 2021). These historical usages—all of which in some way identify civil rights with existing legal rights that govern private life, and that one enjoys or should enjoy by virtue of one’s citizenship in a polity, have for the most part—although not entirely—lapsed. And no clear definition emerged in any of these historical periods. They are not defined in Justinian’s Institutes, nor in Blackstone’s <em>Commentaries</em>, nor in the 1866 Civil Rights Acts. Rather, in each period the jurists and legislators that used the phrase apparently assumed the existence of a shared understanding.</p> <p> Beginning in the second half of the nineteenth century, with the passage in the US of the 1866 and 1870 civil rights acts, through the first two decades of the twenty-first, a very different set of usages of the phrase “civil rights” emerged, most vividly in the United States but in a number of other countries as well. There are some commonalities and continuities between contemporary meanings and older usages. As in the older Roman Law and English Common Law traditions, the phrase “civil rights”, throughout this “long century”—the second half of the nineteenth century to the early decades of the twenty-first—has typically referred to a particular subset of legal rights and the body of law those rights entail—or, sometimes, to a demand that such a body of law be created. Echoing the classical definitions, contemporary “civil rights”, like all legal rights—and <em>unlike</em> “human rights” “moral rights” or “natural rights”—are understood as creations of positive law (see the entry on Human Rights). Thus, the phrase “civil rights law”, now as in earlier eras, refers to the body of domestic positive law that creates various civil rights and the source of remedies for their enforcement when breached. But—and here is the definitive break with both the usage of the phrase in antiquity and the usage that makes an appearance in Blackstone’s “Commentaries on the Laws of England”—the phrase “civil rights” no longer refers to those legal rights derived either from the common law or from a European-styled Civil Code which govern private life, the possession of which partly defines citizenship. Rather—civil rights are now widely understood to be those legal rights that <em>aim for equality</em>, in private and public life both, and which attach to, or are for the benefit of, groups heretofore profoundly unequal by virtue of either “their prior condition of servitude”, their political subordination, their historical or ongoing exclusions from the benefits of citizenship, or from social stigma or widespread abuse (Zietlow 2009; Ackerman 2014). In contrast to natural, human or moral rights, civil rights, in common with all legal rights, are creations of law. But in contrast to other legal rights, the goal of the rights themselves and the “civil rights laws” that create them is not to “give each man his due”, or to ensure public or private order, or a modicum of civil peace and justice. And, in contrast to some (not all) constitutional rights—such as those outlined in the US Bill of Rights—as well as to what are widely called “civil liberties”, the goal of “civil rights” is not to protect a sphere of individual life within which a state or its government may not intrude. Civil rights, unlike constitutional rights and unlike civil liberties, are not typically “negative rights” or rights of liberty against an overly intrusive state. The goal of both the civil rights themselves and the “civil rights laws” that enforce them is the political equality and the social inclusion of particular groups and their members who without them would suffer massive and ongoing inequalities, creating severe and systematic injustice (Zietlow 2005; West 2011, 2019).</p> <p> Assuming that equality is the implied or explicit goal of civil rights law, what, though, does equality require? What is the conception of equality which civil rights guarantee, or aim to guarantee? What does the imperative of equality require of law, and how can that equality be guaranteed by, or delivered by, “civil rights”? Again, there is remarkably little scholarship that centers these questions, and virtually no law that does so. There are, however, a remarkably high number of civil rights <em>laws,</em> from which one can infer tentative answers. Most European countries, the EU itself, International Law, some Latin American countries, Ireland, Israel, South Africa, the United Kingdom, Indonesia and many others, have various bodies of law that aim to guarantee the “civil rights” of various groups along with civil liberties and fundamental human rights.<sup>[<a href="notes.html#note-1" id="ref-1">1</a>]</sup> And civil rights laws, alongside of and sometimes in tension with constitutional rights, have played and continue to play an outsized role in US law and legal culture. From these civil rights laws that are “on the books”, so to speak, it is possible to generate some overriding principles, or understandings, of both the meaning of the phrase “civil rights” generally and the nature of the equality they demand of law. This entry will attempt to do so.</p> <p> It is clearly not possible, however, to catalog those laws worldwide, with their distinctive and distinguishing national legal histories. Rather, this entry will focus on US civil rights laws as a significant exemplar and will draw from those laws a range of meanings, or conceptions, of “civil rights”. The competing conceptions of “equality” and the civil rights that are aimed to achieve it that can be discerned from US civil rights law overlap substantially with—but are not identical to—conceptions of civil rights that are reflected in the law of other countries, where “civil rights” is more often understood as a part of a larger commitment to “human rights law”. Nevertheless there is substantial overlap, particularly in countries which, like the US, have had histories of subordinated, excluded or previously enslaved groups and a distinctive body of civil rights law that has sought their inclusion and equality.</p> <p> This entry accordingly delineates three distinguishable principles of equality that have informed some part of the US civil rights tradition, as reflected in US civil rights laws themselves. The first, earliest, and perhaps the most basic is what might be called the “equal protection principle”. According to this principle, civil rights, as per Blackstone and Justinian both, are indeed legal rights that pertain to private life, which are derived from either common or civil law. What <em>equality</em> demands, however, is that the protections of those laws be enjoyed by all equally. Thus, “civil rights” are not simply the private law-generated rights themselves, but rather, are basically rights to the “equal protection” of the particular fields of law in which those rights originate, or to the equal benefit which the protection accorded those laws might bestow. This is the conception of “civil rights” ultimately reflected in the Civil Rights Acts of 1866 and the Enforcement Acts from the decade that followed (Civil Rights Acts of 1866, 1870, 1871 and 1875). This understanding of “civil rights” and “equal protection of laws” as the essence of the equality which civil rights aim to ensure, however, has also largely disappeared from US jurisprudence, in part because the Equal Protection Clause of Section One and the enforcement provision of Section Five of the Fourteenth Amendment of the Constitution<sup>[<a href="notes.html#note-2" id="ref-2">2</a>]</sup>—passed in part to ensure that Congress had the authority to pass the 1866 Act—have themselves come to mean something very different in twentieth century jurisprudence. Nevertheless, the equal protection principle still echoes, albeit as a minor theme, in contemporary US civil rights law and in constitutional law both.</p> <p> The second understanding of the meaning of “civil rights”, and of the equality at their core, is what is now widely called the “Antidiscrimination Principle” (Brest 1976; Hellman 2008). This is the dominant understanding of civil rights in the US today, as well as in a number of countries with histories of apartheid, caste, or differential treatment of minority groups. Civil rights, on this understanding, are rights of individuals to be free of discriminatory treatment on the basis of an individual’s membership in a group which has itself been the target of political subordination, legally sanctioned segregation, or societal ill treatment. The civil right of nondiscrimination extends a right to be free of such treatment by government actors, by laws themselves, and in some circumstances by private parties. Thus, every individual has a civil right not to be treated differently or worse on the basis of membership in a group defined by race, sex, ethnicity, religion or other characteristics—such as advanced age or disability—associated with a history of exclusion or abuse. Civil rights are basically rights against that discriminatory treatment. The antidiscrimination model has dominated US civil rights law, and civil rights consciousness, from the middle of the twentieth century to the present. The body of civil rights law that has emerged around this organizing principle—antidiscrimination—is, however, badly conflicted, and has been the target of waves of criticism from scholars, courts and activists, and from across the political spectrum. Those criticisms have taken a toll, and the discrimination principle, though still dominant, may be fading.</p> <p> The third conception of civil rights and the equality at which it aims, both in the US and globally, that may be now emergent, and may over time be displacing both the equal protection and the antidiscrimination principles, is premised on what might be called a “welfarist principle”. The phrase “civil rights” increasingly points to those legal rights which we either have, or which we ought to have, in order to have equal opportunities to flourish, both in our communities and our individual lives. “Civil rights” may today be best understood as referring to rights to the laws we have or should have that aim to ensure the social conditions for doing so. We all have an equal right to have the opportunity to flourish, and what that might imply is a civil right to a state that, through law, establishes the conditions that make that possible. Welfarist understandings of “civil rights” are very different from both equal protection and antidiscrimination conceptions, and more resonant with the reach, universality, and ambition of “human rights” in the rest of the world. Each is discussed separately in the three sections below.</p> <h2 id="CivRigRigEquProLaw">2. Civil Rights as Rights to the Equal Protections of Laws</h2> <p> The phrase “civil rights”, to most twentieth and twenty first century American lawyers, refers to the “antidiscrimination rights” created by the 1960s civil rights acts—rights to not be discriminated against on the basis of impermissible characteristics in the worlds of work, school, housing, commerce, finance, voting, and public life. <a href="#CivRigAntRig">Section 3</a> of this entry will focus on this understanding, and the major criticisms that have been lodged against it. It is important to understand, however, that the phrase meant something quite different, and captured a very different set of aspirations, in the nineteenth century, culminating in the momentous and pivotal post-bellum Civil Rights Act of 1866. In the immediate aftermath of the Civil War, all southern states, joined by a number of northern states, passed “Black Codes” that among much else explicitly denied freed slaves the protections of a wide range of ordinary legal rights, such as the enforcement of their contracts, protection of their property through legal mechanisms, the capacity to sue in court for damages caused by tortious conduct of others, the ability to give testimony, and the power to leave a will and expect it to be enforced (Foner 1988: 199–210). The Codes created a large number of crimes, such as vagrancy crimes, that basically criminalized the status of being unemployed, imposed harsh sentences, and stipulated that any white person could arrest any freedman for violations. And, although not an explicit part of the Black Codes, the states also blatantly denied the freedmen the routine and ordinary protection of police forces against the waves of violence directed at them by “white patrols”, police themselves, and the nascent Ku Klux Klan.</p> <p> Abolitionist republicans in Congress viewed the Black Codes, in conjunction with the unpoliced white violence against Blacks that accompanied those laws, as the functional return of slavery in all but name (Foner 1988: 251–281; Rutherglen 2012, 1–19). Congress eventually responded with passage of the 1866 Civil Rights Act—marking the first time the phrase “civil rights” entered the legal, legislative canon. The Act purported to grant all freedmen an equal right to the protection of “civil rights”, regardless of “prior condition of servitude” to the same degree as that enjoyed by white men. (Thus, an early example of what Hannah Arendt would later call a “Right to have Rights”.) The Civil Rights Act thus ensured, or sought to ensure, that freed slaves would have <em>equal protection</em> of these bodies of law, and hence these legal rights, as well as access to the Courts to protect them. The Fourteenth Amendment, and particularly its “Equal Protection of the Laws” clause in Section One and its enabling clause in Section Five, was passed a few months later to ensure that Congress would be understood to have the constitutional authority to enact just such laws.</p> <p> But what <em>were</em> the “civil rights” the freedmen were guaranteed, under the 1866 Civil Rights Act? Again, just to stress, no definition appears in the Act. On the one hand, the rights <em>created</em> by the 1866 Act itself were “antidiscrimination rights” in something like the sense that came to be familiar in the twentieth century: all citizens, regardless of prior condition of slavery or servitude, were to enjoy the same “civil rights” as white men. The Act thus <em>created</em> a right of equality: a right to the equal enjoyment of civil rights. The “civil rights” themselves, however, which the Civil Rights Act first listed, and then guaranteed would be granted and granted equally to whites and freedmen alike, were decidedly <em>not</em> antidiscrimination rights or even equality rights. They were, rather, those Blackstonian legal rights that had long been granted white men, generally by the common law, including, prominently, rights to make and enforce contracts, to write wills, to have one’s property rights respected and enforced, to testify in Court, and, perhaps most significantly, to “enjoy the benefit of those laws meant for the protection of one’s physical and material security”. The first section of the Act reads:</p> <blockquote> <p> [S]uch citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude … shall have the same right, in every State and Territory in the United States, <em>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… and property</em>, as is enjoyed by white citizens, and shall be subject to like punishment…. And to none other, any law…. to the contrary notwithstanding. (Civil Rights Act 1866, emphasis added)</p> </blockquote> <p> The Act raises a host of questions. First, why were <em>these</em> legal rights—rights to make and enforce contracts, to own, inherit, sell, hold and convey property, have access to the courts, and rights to the laws that would provide protection of one’s material and physical wellbeing—singled out? Why were these rights in particular the enumerated “civil rights”, which must be guaranteed to all equally, rather than some other set of legal rights? Briefly, as gleaned from its history, the class of “civil rights” so recognized were those legal rights—rights created by law—that were deemed most fundamental to thriving, prospering, or surviving in civil society. In both pre- and post-bellum America, that included rights, such as property and contract rights, that would facilitate entry into and participation in the economy (Barnett & Bernick 2019, 2021). It also included rights to the protections of law against theft and criminal assault, and it included rights to sue and to give testimony in Court, so as to make the underlying rights meaningful.</p> <p> But second, what general conception of “civil rights” underlies this particular list of legal rights, on which the framers of the “Civil Rights Act” of 1866 relied, when they made this momentous historical law? Where did it come from? Historians differ on that question, in large part because the philosophical distinctions drawn at the time between civil rights, political rights, social rights, legal rights, and natural rights were not at all clear and were drawn differently by different actors. According to one prominent historian of the period, the framers likely relied on familiar materials, including both Justinian’s Institutes and Blackstone’s Commentaries (Rutherglen 2012, 41–46. According to another, the framers viewed “civil rights” as tied in some way to “natural rights” (Tushnet 1992). A third states that there simply was no conception of “civil rights” in pre-bellum discourse the framers started, to so speak, from the ground up (White 2014). All agree though that one possible legal source for understanding the meaning of the phrase was the Supreme Court’s interpretation of the Privileges and Immunities Clause of the original Constitution (Article IV, Section 2),<sup>[<a href="notes.html#note-3" id="ref-3">3</a>]</sup> in a case entitled <em>Coryfield v Coryell</em>, in which Justice Washington declared that the “privileges and immunities of citizenship” are defined as those</p> <blockquote> <p> which are in their nature fundamental; which belong, of right, to the citizens of all free governments; and which have… been enjoyed by the citizens of the several states which compose this Union from the time of their becoming… sovereign.</p> </blockquote> <p> He then included</p> <blockquote> <p> rights to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal.</p> </blockquote> <p> Justice Washington’s definition, however, was not of “civil rights” in that passage, but of the privileges and immunities protection by Article IV. Legal definitions of civil rights, at the time, were scant.</p> <p> A second possible source that might have influenced the 1866 Act’s framers’ conception of “civil rights” is a passage from Thomas Paine’s widely read <em>The Rights of Man</em>, published three quarters of a century before the 1866 Act. Paine distinguished “civil rights” from “natural rights”, and in language that is later echoed in some of the pivotal language in the 1866 Act itself:</p> <blockquote> <p> Natural rights are those [rights] which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation, some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection. (Paine 1791 [1995: 119–120])</p> </blockquote> <p> Paine’s definition seems to both reflect the Blackstonian conception of civil rights as legal rights, and to foreshadow the limitation of “privileges and immunities” to those deemed “fundamental”, found in Justice Washington’s exposition in <em>Coryfield v Coryell</em>. Civil rights, to Paine, were those rights “founded in” natural rights, but which peculiarly appertain to man by virtue of his being a “member of society” (rather than by virtue of his humanity)—thus, they are legal rights, not themselves natural rights—and which require, distinctively, both positive law and legal institutions for their protection: “his individual power is not… sufficiently competent” (Paine 1791). Putting these conditions together yields an understanding of civil rights that seems close to that embodied in the 1866 Act: civil rights are that subset of all rights which a citizen possesses by virtue of his existence as a “member of society”, but which are in some sense so fundamental as to justify their characterization as being “founded in”—although not being themselves—natural rights, <em>and which</em> also require <em>law</em> for their realization, because his individual power is not “sufficiently competent”. Put more succinctly, they are those rights which are “founded” in the subset of natural rights that pertain to participation in society, but which require positive law for their enjoyment. Both the logic and language of this Painean account are echoed in the 1866 Act, which explicitly references particular bodies of positive law as being the source of the “civil rights” that must be equally bestowed, along with “all laws and proceedings for the security of person and property”—a phrase directly mirroring Paine’s—as central to the civil rights to be thereby protected.</p> <p> Here, then, is one possible definition of the nineteenth century view of “civil rights”, reading the 1866 Act against the backdrop of Paine’s distinctions, <em>Coryfield’s</em> emphasis on rights which are “fundamental” and Blackstone’s (and Justinian’s) baseline definitions. First, both the content and the <em>justification</em> of the subset of legal rights that should be regarded as “civil rights” can be found in some subset of natural rights, or natural law. To this degree, then, it makes sense to regard the nineteenth century understanding of civil rights as tied in definitional ways to natural rights, without themselves <em>being</em> natural rights. Rights to contract, property, legal process and the protection of law against violence were all so viewed; those legal rights are “fundamental” because they are the rights that facilitate participation and inclusion in economic and civil life (Barnett & Bernick 2021). Thus, civil rights were not simply all legal rights that might be read off of existing law, but nor were they simply another name for natural rights. Rather, they were those legal rights so fundamental as to be grounded in natural law, or natural rights, which facilitate participation in civil life, <em>and which</em>, distinctively, required positive law to perfect. By virtue of a civil rights <em>law</em>—the 1866 Civil Rights Act—all freedmen must be equally as entitled as white men to enjoy the protections of those bodies of law.</p> <p> What happened to this “equal protection” conception of civil rights and of the equality it aims to guarantee at its core? It was undone, basically, over the course of the bloody decades that came on the heels of Emancipation, and the Supreme Court’s jurisprudence of that era. Congress had passed “Enforcement Acts” in 1870 and 1871 that aimed to empower federal law enforcement officers, federal judges and courts, and federal prosecutors, to enforce the rights created by the 1866 Act. Those acts were then used to prosecute crimes of violence as well as other violations of the freedmen’s newly won civil or constitutional rights committed by white supremacists and white insurrectionists, and to prosecute them for “civil rights violations” under the 1866, 1870, and 1871 Acts. Those prosecutions, however, were challenged as unconstitutional, basically on the grounds that they violated nascent principles of federalism, which vested the powers and responsibilities of the enforcement of the common law, including laws against criminal acts, with states, and not with the federal government. The Supreme Court agreed, eventually holding that the Enforcement Acts, if used to prosecute “civil rights” that were, at heart, derived from the common law, claimed too much authority for the federal government, at the expense of the power and right of states, to control and enforce that law. (<em>Cruikshank v US</em>). Congress simply did not have the constitutional power to take such intrusive action against state authority. It is up to the states, not the federal government, to ensure that all of its citizens enjoy the protections of state law, including the bodies of law enumerated by the 1866 Act. The states may indeed have a duty—a moral or natural duty—to ensure that all citizens enjoy the protections of those bodies of law. The federal government, however, has no role to play in ensuring that they do so.</p> <p> The 1866 Act, which again spelt out particular areas of the common law and asserted that all citizens, regardless of prior condition of servitude, were entitled to their protections, was never overtly struck down. It was the <em>enforcement</em> of those rights by federal officials—and as federal law—that was held to be unconstitutional, so long as the enforcement sought took the form of prosecutions of private individuals rather than public officials. The meaning, however, of that momentous Act was radically reconceived. The very broad and deep understanding of “civil rights” that apparently motivated the 1866 law—that everyone is entitled to the protections of some areas of ordinary but fundamental law because that protection is necessary in order to thrive societally, that particular fields of the common law can be identified as constituting that fundamental law, and that the US Congress has the authority and responsibility to guarantee those protections—has simply been lost, and the understanding of the meaning of “civil rights” at its heart has become archaic. The Supreme Court held explicitly, in the decades following passage of the Acts, and repeatedly, that neither the Equal Protection Clause, nor the Privileges and Immunities Clause, nor the Due Process Clause of the Fourteenth Amendment gives the federal government the authority to protect the civil rights of individuals against the infringement of those rights by private individuals, or by state governments in the absence of impermissible racial distinctions (<em>Civil Rights Cases</em> [1883], <em>Cruikshank v. United States</em> [1876], <em>Slaughterhouse Case</em> [1873]). The <em>antidiscriminatory</em> content of the 1866 law has been retained and was vastly expanded in the Civil Rights Acts of the twentieth century as discussed below: if an individual refuses to contract, sell a house, or employ someone because of race, there is an actionable violation of a civil right against that individual. The philosophical idea reflected in that Act, however—that citizens all have civil rights to the protections of various bodies of ordinary law that are so vital to membership in a civil society that their protections must be extended to all—has been almost entirely lost.</p> <p> One consequence of this is loosely political: we have lost an understanding that we have fundamental civil rights, as opposed to simple legal rights, to the particular rights enumerated in that amendment: to the enforceability of our contracts, to the enjoyment of our property, to “our security and protection” as Paine put it, or to the “full and equal benefit of all laws and proceedings for the security of person”, as stated in the Act itself, as well as to our rights to participate in the legal processes necessary to protect those civil rights. To be clear, we <em>do</em> have antidiscrimination rights that guarantee that these rights (and others) may not be denied on account of race. But we do not have civil rights that go beyond antidiscrimination to the rights that derive from the bodies of law themselves. Thus, if a state were to refuse to enforce contracts entered into by Black citizens, while enforcing contracts of white citizens, or if a state were to refuse to extend the protections of the criminal law to Black crime victims but not white victims, and did so because of provable racial animus, there may be a violation of civil rights and of civil rights law, premised on that unequal treatment. If instead, though, the state simply stopped enforcing contracts across the board, or defunded the police force completely and did so with no discriminatory intent, there would be no actionable civil rights violation, no grounds for a lawsuit, and no sense of alarm that a civil right to that very protection had been violated, regardless of whether it could be remedied. There are a few exceptions in the scholarly literature—although not in the law itself—to this general neglect. Some constitutional originalists now argue that the particular “civil rights” listed in the 1866 Act—rights of contract and property—should have been regarded in the nineteenth century and should still be regarded as federal “privileges and immunities” under that now generally moribund clause of the Fourteenth Amendment, and therefore that Congress does indeed possess the authority—and even the obligation—to both guarantee those property and contract rights, and constitutionally protect them against legislative infringement (Barnett & Bernick (2021). If that is right, then Supreme Court authority to the contrary is simply wrong. Justice Thomas has long held the somewhat idiosyncratic view that Second Amendment rights of gun ownership should also be regarded as a “privilege and immunity” and therefore a “civil right” which Congress might accordingly guarantee (J. Thomas, concurring opinion in <em>McDonald v City of Chicago</em> [2010]). But aside from these academic attempts, and Thomas’s view expressed in <em>McDonald</em>, there is no widespread sense—let alone a deep conviction—that there is a pre-existing civil right to the protection of either the bodies of ordinary law derived from the common law—contract law, property law, tort law, or criminal law—and listed in that Act, or any other body of ordinary law, the protection of which should be granted and enjoyed by everyone and protected as civil rights.</p> <p> A second consequence, however, is deeper, and more jurisprudential in scope: We have lost a universalist understanding of the meaning of “civil rights” implicit in the 1866 Act’s enumeration, that might be viable <em>whether or not</em> the particular enumeration of laws contained in that Act—laws of contract, property, access to courts, etc.—are still those most fundamental to modern life. In other words, we’ve lost the general conception of civil rights, as well as the particular conception of the constellation of rights enumerated in the Act that qualify. We’ve lost the sense that “civil rights”—whatever their particular content—are generally those legal rights, derived from ordinary law, which are so fundamental, or important, or central, or essential, to our lives as citizens that we hold them as civil rights rather than merely as legal rights. Which legal rights might fit this description, could, and likely does, vary across large spans of time. The role once held by contract law and property law, as essential to participation in economic life, for example, might now be held by some other bodies of law, such as, arguably, employment and education law. In the twenty-first century, we might need education and employment, and therefore education law and employment law, at least as much as we need property law or contract rights, to fully engage in contemporary civil life. If so, then perhaps the rights we have under education or employment law should now be understood as civil rights, the protection of which must be guaranteed. But regardless of whether that claim is right or wrong, this much is certain: we’ve lost the possibility, which was clearly implied by the Civil Rights Act of 1866, that even if not the particular common law rights there enumerated, there may be <em>some</em> set of legal rights—whether federal or state, common law or statutory—that may now be, or may become, so fundamental, as to constitute civil rights, the enforcement and protection of which should be guaranteed. And because we’ve lost it, the importance of law itself, and of the Rule of Law, to our understanding of civil society, and of civil life and of civility likewise, is to that degree diminished.</p> <h2 id="CivRigAntRig">3. Civil Rights as Antidiscrimination Rights</h2> <p> For most twentieth and twenty-first century American lawyers, the catalogue of “civil rights” we indisputably have are understood to be primarily a product of the various Civil Rights Acts of the 1960s and their amendments, which were themselves a product of the politically momentous civil rights movement of the mid-twentieth century. And what those rights guarantee, mostly, is freedom from “discrimination”, both in the private and public sphere, by which is meant that they give their holder the right to not be treated differently on the basis of a characteristic, such as race, that defines the subordinated group of which they are a member. The narrow goal of the civil rights thereby created in the 1960s was the end of Jim Crow, or legal apartheid. Their broad goal was and is the civil, social, and political equality of Black Americans as well as members of other groups who have suffered some degree of political or legal subordination. The means by which that goal was to be realized was, and is, primarily, the creation and enforcement of individual rights to be free of invidious discrimination (Ackerman 2014; Brest 1976).</p> <p> “Civil rights”, on this twentieth and twenty-first century United States understanding are—mostly—rights to be free of discrimination, and for that reason, it is common now to think of our “civil rights tradition” or our “civil rights society” as based on what is often called the “antidiscrimination principle” (Brest 1976; Hellman 2008; Bumiller 1988; Ackerman 2014). “Civil rights” on this conception are, mostly, “antidiscrimination rights”, and what that means is that an individual may not be treated differently at least in specified fields of life, on the basis of his or her membership in a group defined by what has come to be called “suspect characteristics”: race, sex, gender, ethnicity, national origin, religion, age, or disability. Thus, “Civil Rights” inlude, among others, a civil right against discrimination in employment, meaning that one cannot be fired, not hired, or not promoted on the basis of race, pursuant to Title VII of the Civil Rights Act of 1964. They include rights against discrimination in housing under Title VIII of the Civil Rights Act of 1968, which means one cannot be treated differently as a tenant or buyer or seller on the basis of those traits, and rights against discrimination in financial markets under the Fair Housing Act of 1968 and the Equal Credit Opportunity Act of 1974, which means one cannot be denied credit because of race or other suspect characteristics, and, pursuant to a complex and now badly shrunken body of law, one has rights against discrimination in access to voting under the Voting Rights Act of 1965. This is but a partial list. It bears emphasizing that the target of these civil rights and civil rights laws is not only discrimination that was once encoded in law—the Jim Crow legislation targeted and struck as unconstitutional by the Supreme Court in <em>Brown v Board of Education</em> in 1954—but also, and much more broadly, discrimination in the “private sphere” as well, much of which was completely untouched by that decision. The target of the wave of civil rights laws passed in the 1960s, and then substantially amended through the rest of the century, is the dismantling of the legal and social structures that had governed both public and private life, and which had overtly or implicitly permitted racist decision-making in government, but also in private laissez-faire markets. The vehicle for achieving such a radical transformation of public, private and commercial life was the creation of a body of <em>law</em>—with the Civil Rights Acts of the 1960s at their heart—coupled with the availability of private lawsuits for their enforcement (Ackerman 2014).</p> <p> The Civil Rights laws of the mid-twentieth century, and with them the understanding of the antidiscrimination principle, have undergone significant expansions since their passage in the 1960s. First, the class of holders of antidiscrimination rights has expanded. Contemporary civil rights laws now forbid discrimination in the designated fields on the basis not only of race but also sex, ethnicity, religion, national origin, age and disability. A campaign for passage of a proposed Equality Act aims to expand our civil rights laws to protect gender and sexual minorities as well (Hunter 2015). If successful, such an Act would grant to gay, lesbian, bisexual, and gender nonconformists the same set of protections against discriminatory conduct now accorded other groups who have experienced or still experience irrational animus in private and public life. Some states have already passed such laws forbidding discrimination against sexual and gender minorities; Congress however has yet to do so.</p> <p> Second, the <em>meaning</em> of the “discrimination” that is the target of those laws changed, and broadened, significantly. It no longer means an intentional act that results in the worse treatment of individuals on the basis of particular characteristics. In <em>Griggs v Duke Power Company</em>, decided in 1971, the Supreme Court held that maintaining a policy—whether or not intentionally or overtly discriminatory—that “adversely impacts” a suspect group such as Blacks or women constitutes a violation of Title VII, and hence a civil rights violation, no less than does intentionally discriminating against that group, if there is no business-related justification for the practice. In these “adverse impact” cases, an intent to discriminate need not be shown. Rather, if an employer uses a formula, practice, or policy for hiring, or promotion, or firing, which impacts a protected group more harshly than the dominant group, and there is no business justification for the practice, liability may follow. For example, a test given to applicants which favors native English speakers may adversely impact ethnic minorities for whom English is a second language; if there is no business-related justification for the level of English proficiency for which the test is screening, liability may follow. The inclusion of these “adverse impact” cases in both employment civil rights law and housing law clearly expands the concept of discrimination itself: the use of such a criterion does not necessarily reflect discriminatory animus although it might reflect a negligent or overly casual stance toward the adverse consequences of criteria employed for selection.</p> <p> Third, in the 1980s and 90s, the Supreme Court held, in a series of cases, that the sexual harassment of working women is also a form of “discrimination” actionable under Title VII (<em>Meritor Savings Bank v Vinson</em>, 1986). Women who suffer either a sexually harassing environment, or “quid pro quo” offers of promotions or pay raises in exchange for sex, suffer actionable discrimination, and can sue the employer, whether or not the employer was the harasser, and whether or not the employer was intentionally involved with the harassing behavior (MacKinnon 1979). This has since been expanded to include gender harassment and racial harassment, and also extended to include schools as well as workplaces. This is a significant expansion of antidiscrimination law in terms of the content of what is understood to be discriminatory conduct: it extends the concept of “discrimination” to include, basically, attempted and completed sexual assaults. But it is also an extension of the antidiscrimination principle itself, by virtue of including in the concept of discrimination the maintenance of a particular—and particularly assaultive—working or school environment. Sexual harassment law is messy, contested, and in some ways incoherent: it is not clear what the connection is between harassment and discrimination, and if read broadly, it is not clear whether it over-polices against harmless and possibly beneficial sexual banter at work and in schools (Franke 1997; Shultz 2018; Halley 2002). Nevertheless, sexual harassment law has unquestionably expanded the reach of the antidiscrimination principle, and therefore of our civil rights. Putting all three of these expansive movements together, the antidiscrimination principle now includes discriminatory acts against a much larger group of people than initially prescribed in the originating laws, includes patterns or practices or policies that adversely impact those groups, and includes the tolerance or creation of environments or atmospherics that are harassing on a number of grounds that go well beyond discriminatory acts of biased or bigoted employers.</p> <p> Taken <em>in toto</em>, the antidiscrimination principle, and the conception of civil rights it grounds—basically, that civil rights are antidiscrimination rights, which are in turn aimed at achieving a measure of equality for heretofore subordinated groups by eradicating both the effects of racism, sexism, and ethnic and religious bigotry, as well as biases against the elderly and disabled, and in public and private life both—is the dominant functional understanding of civil rights in the United States, at least in the worlds of law, meaning legal practice, judging, and academia. That said, even with its extensions, the antidiscrimination principle is clearly under-inclusive. Not all of our legal rights that are also widely characterized as “civil rights” are nondiscrimination rights. We also have civil rights to be free of unconstitutional actions of law enforcement officers, such as searches or seizures that violate the Fourth Amendment, and regardless of whether those actions were “discriminatory” in any sense at all (<em>Monroe v Pape</em> 1961; <em>Monell v Dept of Social Services</em> 1977; <em>Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics</em> 1971). At various points in the first decades of the twentieth century, the lawyers in the US Justice Department’s “civil rights division” pursued labor rights, in addition to antidiscrimination claims, particularly where the labor rights would promote the interests or protect the wellbeing of Black laborers in the South (Goluboff 2001, 2007). More generally, we also sometimes speak of our “civil rights” to not be deprived of various constitutionally defined liberties, such as free speech, thought, and assembly, and, at least until the <em>Dobbs v. Jackson Women’s Health Organization</em> (2022) decision, a broad panoply of reproductive freedoms as well. These “civil rights” are held by all who hold those underlying constitutional rights, and they are not in any obvious way tied to nondiscrimination norms. We have civil rights, in other words, that are not “nondiscrimination rights”, at least, not in any obvious sense of the meaning of discrimination or its absence.</p> <p> Nevertheless, the “antidiscrimination principle” captures the essence of most of the civil rights that were created by law during the “civil rights era” of the mid- and late-twentieth century and recognized by courts ever since. It also captures at least one of the core aspirations of the civil rights <em>movement</em> of the middle of the twentieth century, which mobilized for the passage of these laws, and which had the Jim Crow regime as its target. Those laws ended the soul crushing discriminatory exclusions of Black Americans by store owners, restaurateur and soda counter managers, in hotels, motels, and taxicabs, and in private schools and colleges (only public grade schools, colleges, universities and public facilities were directly targeted by the <em>Brown</em> decision of the decade prior). They ended the redlining practices of realtors and real estate sellers as well as the discriminatory treatment of Black tenants by lessors and landlords. They ended a range of practices, the use of various criteria, and state-wide policies designed to prevent Blacks but not whites from exercising the franchise. They ended the discriminatory treatment of Black and female borrowers by banks and other lenders, and they put an end to the racially and sexually discriminatory hiring, firing, and compensation of employees by employers country-wide.</p> <p> The mid-twentieth century civil rights movement, the civil rights laws which they birthed, and the civil rights those laws in turn created transformed a nation, ridding it of the legally permitted apartheid in the worlds of housing, employment, banking and finance, transportation, public accommodation, voting access and education. That apartheid had become, for many, the normal white noise of daily life, and the thousands upon thousands of individual and discriminatory acts and judgments—loosely rationalized as nothing more than individual preferences playing out in laissez faire markets that accommodate all—were the mechanism, along with complicit state actors, for perpetuating it. Taken collectively, the Civil Rights laws of the mid- to late-twentieth century was the prize on which so many eyes were kept, for which blood was spilt, and for which some martyrs—for whom monuments were eventually erected—died. Antidiscrimination is and was the ideal at the heart of that movement. Having now embraced it, antidiscrimination is now as much “of the essence” of our American civic religion as the freedoms of speech, press, and religion enshrined in the First Amendment, or the wall between religion and state, or the separation of powers, or the constitutional rights of privacy that, at least until recently, were found in the penumbras of our founding documents.</p> <h3 id="LimAntPriConMeaVal">3.1 The Limits of the Antidiscrimination Principle: Contested Meanings and Values</h3> <p> The antidiscrimination principle, however, no matter how revered, is not free of difficulty or ambiguity. Partly, this is because the goal of “equality” is itself ambiguous, an ambiguity that goes far beyond the scope of this entry. But the meaning of the guiding principle of “antidiscrimination” is also contested. It isn’t clear whether the wrong of “discrimination” is consciously biased decision-making, or unconsciously biased decision-making, or the completely unwitting use of criteria that correlate with a suspect class, or the knowing embrace of practices that adversely impact a subordinated group, or the neglect of workplace or schoolhouse atmospherics that hinder the performance or mar the experiences of members of suspect classes. It likewise isn’t clear what the nondiscriminatory society that is the target of antidiscrimination law actually requires: whether the goal of this body of law is a society that is rid of conscious racism and bias, or one with truly integrated schools and workplaces and neighborhoods, or one of relative substantive equality between various groups, whether or not they are integrated, or something other (Bell 1987; Peller 2011; Crenshaw 1988; Fiss 1976; Hellman 2016; Lawrence 1987; Hellman & Moreau 2013; Dorf 2002).</p> <p> No matter how defined, however, the antidiscrimination principle is also now the target of considerable criticism from scholars, judges, and activists, and across the political spectrum. The earliest, sustained criticism of the antidiscrimination principle came from libertarians and free market enthusiasts, including the economist Gary Becker and Law Professors Richard Epstein and Richard Posner, all from the University of Chicago (Becker 1971; Epstein 1992, 1995; Posner 1987). This economics-minded group argued on various grounds that antidiscrimination laws such as Title VII are either inefficient or unnecessary. They are unnecessary, to whatever degree they police against discriminatory preferences that are in fact “irrational”—such as a preference, based in unfounded bigotry, for hiring whites, where Black applicants are better or equally suited for the work—because the market, better than law, will police against these irrational preferences, as it polices all others, by punishing such employers with higher labor costs and eventually less market share. Alternatively, antidiscrimination laws that attempt to police against “rational” discriminatory preferences—by which is meant preferences that are in fact efficient, because race or sex (etc.) is being used as a defensible proxy for a trait that is difficult to identify in applicants but is in fact related to job performance—simply mandate inefficiency and are therefore unwise. The former preferences—a preference for hiring whites even where a Black applicant is better suited for the job—if irrational, will in effect be punished by the market, as the employers’ costs will go up, precisely because they have a less skilled workforce. If they wish to remain competitive the bigoted employer will abandon their discriminatory preferences. The latter preference—a preference for hiring whites or men over Blacks or women because race or sex is a good-enough proxy for some other valued trait—is rational, and therefore efficient, and therefore not pernicious. To target “discrimination” through civil rights laws is therefore nothing more than inefficient governmental intrusion into private markets.</p> <p> Very different criticisms of the antidiscrimination principle were put forward in the 1980s through the 2000s by successive waves of critical scholars: first, from scholars identified with the early Critical Legal Studies movement, and then from Critical Race scholars and Feminist Legal theorists, all writing within American law schools. For a number of early critical legal scholars, the “antidiscrimination principle” constituted a striking example of the power of nominally progressive law, particularly in liberal, legal cultures, to legitimate, in the Gramscian and Marxist sense of that word, deeper injustices that are not touched by the progressive reform, including, but not limited to, racial injustices (Freeman 1978; Peller 1990; Tushnet 1984; Seidman 1992). Thus, the recognition of and compensation for the wrongs of individual discriminatory acts and decisions, according to this group of critics, legitimates and even valorizes what it leaves completely unaddressed: the unequal employment, health, education, and income inequalities of generations of Black Americans caused not by individual and discoverable acts of discrimination, but by the cumulative impact of centuries of exclusion from educational institutions, decades of inadequate schooling and health care, unequal access to affordable housing, itself in part a function of exclusion from programs focused on home ownership after the World Wars, and the untold but vastly unequal accumulation of intergenerational wealth, itself a function, in part, of the centuries of uncompensated slave labor, followed by discriminatory wage deflation during the decades following reconstruction. The focus on identifying and then correcting present, individual acts of discrimination runs the risk of blinding us to earlier and more damaging patterns of structural or institutional racism, and their aftermath, by creating individual “wrongdoers” and “victims”, and then conveying an overly simplistic impression that the inequality that remains, once the world is rid of intentionally discriminatory acts, is untainted, and therefore must be fair. To use a metaphor, if we were to lift the weights off the ankles of some runners halfway around a race course, so as to create a perception of fairness and equal treatment between the runners “in the moment”, this could legitimate the unequal outcomes at the end of the race, where no attention had been paid, and no compensation forthcoming, for the weights that hindered the racers in the first half of the track. The very act of removing the weights would further entrench the impression that the inequalities that remain at the end are a function of nature or inclination.</p> <p> Critical Race Scholars in the 1980s, when these critical insights or claims were first voiced, responded with ambivalence. A number of African American law professors who were then called “minority scholars” argued in response that the critical legal scholars who targeted the antidiscrimination principle basically for legitimating other or deeper ills simply failed to see the independent and searing power of intentional racism in twentieth century life, and were as a consequence over-inclined to metaphorically short-change both antidiscrimination norms and the civil rights vision that birthed them (Crenshaw 1988; Crenshaw et al. 1995; Matsuda 1987; Williams 1991). Nevertheless, critical race scholars over the last three decades have generally agreed with the critical legal scholars that the antidiscrimination principle is insufficient, and that it largely fails to address the magnitude of the injustice attributable to both past and present racism (Bell 1987; Delgado 1995; Lawrence 2008; Peller 2011; Crenshaw et al. 1995). For the critical race theorists, however, the problem with the antidiscrimination principle stemmed not from its legitimation costs per se, but more simply, from its aiming at the wrong—or badly defined—target. It just isn’t clear how powerful “antidiscrimination” is as a proxy for racial equality or even for anti-racism; put differently, it’s not obvious that antidiscrimination laws are either a necessary or a sufficient condition for the forms of social and political equality that the civil rights movement that birthed them sought. In particular, the effects of intergenerational racism—a century of exclusion from the enjoyment of public benefits, or the provision of health services, of overt exclusion from elite schools and universities, of exclusion through redlining in the distribution of housing, and deflated wages—have led to inequalities of wealth, longevity, health outcomes, educational attainment, and income, that are simply untouched by the policing of private sphere discrimination. Whether or not antidiscrimination law “legitimates” the structural racism it fails to address, those laws are clearly not sufficient, if the goal is to address the material inequalities that still divide white vs black and brown America. The damage that may potentially be done by the misdirection, though, goes even deeper. Some measure of intentional, race-conscious, differential treatment on the basis of race or sex or other characteristics that have historically defined subordinated groups seems to be a necessary feature of the various sorts of remedial affirmative action programs in a range of both public and private institutions, from colleges and universities to federal, state and local governmental programs designed to bolster minority participation in the growth of small business. Laws that prohibit discrimination by mandating “color-blindness” may be not only misdirected or insufficient, but counter-productive, if they imply that the sorts of affirmative actions taken to achieve these ends are violative of the antidiscrimination principle at the heart of the Civil Rights vision itself.</p> <p> Feminist legal theorists developed a parallel critique, with a focus on the impact of the antidiscrimination principle on women’s lived experiences. The antidiscrimination principle, according to its feminist critics, achieves at most a “formal equality” through syllogistic reasoning premised on an assumption of sameness, or similarity, between men and women. To achieve the formal equality at which the antidiscrimination principle aims, “likes” must be “treated alike”; and what that means, mostly, is that Blacks must be treated like whites, and women like men. Blacks are “like” whites in all ways that matter and women are “like” men, and therefore treating Blacks differently from whites or women differently from men is an injustice. This syllogism and the formal equality toward which it aims will backfire, however, where the two groups are in fact unalike. And women are indeed unlike men precisely by virtue of the profound subordination of their interests, over centuries, to men’s interests. Consequently, something more than nondiscrimination is required, if we are to achieve meaningful progress toward the substantive equality or justice at which civil rights movements have been aimed. In women’s lives, the need for remedies that go beyond or are simply different than what might follow from a strict understanding of “antidiscrimination” is acute, given palpable differences in lived experience. The needs of persons who experience pregnancy and childbirth while employed, for example, are different during those periods of life from the needs of those who don’t and never will, and applying the same leave, pay, and job security policies to the two groups across the board will adversely, and severely, affect women’s overall employment prospects (Law 1984). Correcting discrimination in the workplace, to take a second example, doesn’t address unequal distribution of home labor. And last, as argued by Catherine MacKinnon throughout her career, the focus on discrimination is <em>in toto</em> misguided for a more fundamental reason: sexual assault and violence, rather than different treatment in workplaces, is the crux, content, and cause of women’s subordination (MacKinnon 1982, 1987(a)(b), 1989). The antidiscrimination principle applied formally and across the board provides little beyond a gloss of superficial equality. It may provide a corrective to the illogical or irrational exclusion of already-well-off (and therefore similarly situated) women from jobs or promotions to which they aspire. But it is a massive distraction from the work of ending the sexual violence and reproductive coercion that is at the heart of women’s and girls’ struggles with the subordination of their interests to that of men.</p> <p> Finally, a different and arguably deeper criticism of the antidiscrimination principle, and the civil rights vision it grounds, emerged in the late nineties and first couple decades of the twenty-first century from a group of critical scholars loosely identified with postmodernism, anticolonialism, and anti-identitarian politics. These critics resist the limitation of our civil rights to the antidiscrimination principle, but they also more broadly resist the association of civil rights and civil rights aspirations with particular identitarian groups (Brown & Halley 2002). Three major themes of the “postmodern” critique have emerged. First, the postmodern critics have emphasized that, simply as a matter of historical fact, the antidiscrimination principle does not do justice to the broad moral and political ambitions of the civil rights movements of the mid-twentieth century, both in the United States and elsewhere. Antidiscrimination was unquestionably a part of those movements—the end of Jim Crow was its oft-stated goal—but the movement also targeted entrenched poverty, an end to the subordination of laborers, an end to imperialist wars, and global economic injustice, as reflected in the Poor People’s Campaign and in Martin Luther King’s most revered speeches (Ford 2011). Viewed most expansively the broad civil rights movement from mid-twentieth century also had ties to international labor and anti-colonialist movements, all of which were lost in the inward looking and thoroughly domestic civil rights laws that were eventually produced in mid- to late-twentieth century. More generally, though, according to these critics, the antidiscrimination principle that emerged in the 1960s, 70s, and 80s, and which has guided civil rights law ever since, is unduly tied to identitarian politics and even ways of thinking. The focus on discriminatory harms felt by particular groups blunts our political imagination and ambition, which needs to expand its scope to conditions felt by all. To take one example: the extensive accommodations accorded disabled students by virtue of the Americans with Disabilities Act (1990) inadvertently highlights—and then completely neglects—the inadequacies of public funding for the education of poor children across the board, whether disabled or not. There is no apparent reason to privilege disability over poverty as a cause for inadequate educational opportunities. Responding to and accommodating the needs of disabled students legitimates the neglect of impoverished students (Kelman & Lester 1997). Other postmodern critics have focused on untoward consequences of other identitarian-tinged civil rights: Janet Halley has argued, for example, that sexual harassment law has entrenched hetero norms of sexual privacy and dampened sexual diversity at the cost of other progressive ideals, aligning feminism with censorial attitudes toward sexuality in general that have proven harmful (Halley 2002, 2006). These anti-identitarian critics, echoing earlier critics and some activists, have put into question, and from a left-wing, socialist, and anti-colonialist perspective, not only the formal equality of the antidiscrimination principle, but more broadly the legalism, the inward-looking orientation, and the imaginative limitations of the civil rights vision itself.</p> <h3 id="AntPriTod">3.2 The AntiDiscrimination Principle Today</h3> <p> The cumulative weight of the economic, critical, and postmodern critiques of the antidiscrimination principle has been profound. First, the criticisms put forward by critical scholars eventually led to the articulation of an alternative “anti-subordination principle”, intended as a replacement for the limited antidiscrimination ideal (Colker 1986; MacKinnon 1987(a)(b)). The “anti-subordination principle”, as envisioned by critics of the antidiscrimination model, would embrace three goals. First, it would aim to address and understand and articulate the systemic, rather than individualistic, causes of racism, or sexism, or any other system of thought and behavior that subordinates entire groups; second, it would aim to achieve substantive, rather than only formal or legal equality between these groups; and lastly, it would address the various forms of subordination occasioned by capitalism and class hierarchy, including the depressed incomes of working class laborers, the lack of welfare rights of the poor, environmental harms felt broadly but also felt more intensely by poor, Black and Brown communities, and the inadequate education, healthcare, and employment available to poor persons across the board, all of which are caused by structural features of liberal capitalism that transcend or are simply different from the sorts of bigotry, race or sex biases, and simple racial animus that is targeted by the antidiscrimination principle. The idea that the anti-subordination principle—rather than the antidiscrimination principle—should guide civil rights law and aspirations has never become law, but it has become a broadly unifying commitment of critical legal scholars, critical race theorists, feminist legal scholars, and some postmodern critics. It promises a more substantive and experientially informed interpretation of the overriding goal of equality sought by civil rights, a way out of the logical traps of the antidiscrimination principle that had mired the law in an endless regress of what groups of people are “like” what other groups, and seemingly promises, if reflected in law, a more just society for all, rather than only narrowly identified classes of victims.</p> <p> Second, a number of feminist race critics have deepened and enriched the antidiscrimination principle by focusing on the impact of antidiscrimination law on persons “at the intersection” of various forms of discrimination, and the difficulties posed by traditional antidiscrimination law in recognizing those injuries (Crenshaw 1991). Black women are subjected to types of discrimination not shared by either white women or Black men; and because they are not so shared, they may be invisible to traditional antidiscrimination law: a Black woman harassed at work, in ways unique to Black women, may not be understood as experiencing “sex discrimination” if white women are not also targeted, or “race discrimination” if the same is not true of Black men. This intersectionality critique, originally aimed at these cramped “categorizations” of traditional antidiscrimination law, has been significantly broadened in three respects: first, intersectional theorists now criticize traditional feminism and antiracism initiatives, as well as the law, for failing to identify and respond to the needs of people suffering intersectional harms (Harris 1990). Second, the categories of persons suffering intersectional harms have been widened to include not only those at the intersection of race and sex identities, but also those at the intersection of class, sexuality, disability, and gender nonconformity. Third: the areas of law now regarded as requiring intersectional analysis has grown substantially in the 2010s and 2020s, as the harms suffered by intersectional communities, particularly of race and class, are better appreciated. Poor and Black communities, for example, suffer distinct and distinctively severe harms occasioned by climate change; and poor and Black women, to take a second example, suffer distinct and distinctively severe harms, occasioned by poor health care. A focus only on discrimination against women, or discrimination against Blacks, can erase or diminish these harms.</p> <p> More broadly, however, the criticisms of the antidiscrimination principle, and the civil rights conception it came to define, have contributed to a general discontent with the centrality of the antidiscrimination principle shared by broad swaths of the political spectrum. From libertarian and free-market-leaning scholars, there continue to be calls to restore less regulated laissez-faire markets in labor, housing, and sales of goods, that would require the elimination of the antidiscrimination principle (Epstein 1995). From the left, there are concerns, most voiced by critical scholars, that the antidiscrimination principle does too little, and its “legitimating” effects and costs outweigh the benefit of the occasional courtroom victory for individual aggrieved litigants. Legally, the antidiscrimination principle—sometimes understood as requiring “colorblind decision-making”—is increasingly understood by and successfully used by conservative legal theorists, lawyers, and judges as a way to target affirmative action programs, minority business preferences, and admissions and employment policies that aim to fulfill “DEI” goals of “diversity, equity, and inclusion”, all of which had come to be viewed as sensible remedial actions to earlier and more structural civil rights violations (<em>Students for Fair Admissions v Harvard</em> 2022). It is increasingly clear that the antidiscrimination principle undercuts affirmative action, and if it does, it is not clear that it will continue to help the groups originally believed to be the beneficiaries of civil rights laws. At the same time, the number of successfully litigated traditional employment discrimination cases is declining rapidly year over year, a decline fueled by judicially created restraints on class actions, without which litigation is simply not affordable, and enforceable “mandatory arbitration clauses” that divert civil rights actions to less hospitable arbitration tribunals (Glover 2006). On campuses, Title IX (1972) actions to enforce students’ rights against sexual assault or harassment, long viewed as implied by the antidiscrimination principle, are mired in procedural challenges and process disputes (Cantalupo 2020). In 2014, Yale Law School Professor Bruce Ackerman, our chronicler par excellence of the twentieth century’s civil rights movement and the law it produced, declared, on the first page of his magisterial treatment of that tradition, that the “civil rights era” is entering its sunset years (Ackerman 2014). To whatever degree our civil rights are at heart nondiscrimination rights, the same may be true of our civil rights laws as well.</p> <h2 id="CivRigRigFlo">4. Civil Rights as Rights to Flourish</h2> <p> A number of contemporary, twenty-first century civil rights movements, and contemporary understandings of “civil rights” those movements imply, are not fully captured by even an expansive conception of the antidiscrimination principle. The movements that today are characterized as civil rights movements do not have any apparent causal or thematic connection with particular acts of animus-driven individual discrimination. Nor do they readily align with the legal protectionist conception implied by the 1866 and 1870s Civil Rights Acts. Do we have, for example, a civil right to a clean environment? The “environmental justice” movement, that aims to highlight and rectify the disproportionate environmental harms sustained by Black, Brown and poor communities, argues that we do, or should (UCC Commission for Racial Justice 1987; Bullard 1990). Do we have or should we have a civil right to assistance with the costs of care for dependents? Ann Alstott, a tax professor at Yale, argued as much in a book length treatment advocating a one-time payment to all new caregivers on the birth of children, so as to ensure the ability of the caregiver to continue to participate in either educational or labor markets (Alstott 2004). Do we have a civil right to health, health care, or health care insurance? Proponents of the Affordable Care Act of 2010 and its expansion certainly argue as much. Do we have a civil right to some minimum measure of safety from gun violence? Proponents of stronger gun safety laws have characterized their campaign for gun control laws as <em>the</em> quintessential civil rights cause of the day, or perhaps of their generation. Do we have a civil right to a sound education, or to support during retirement, or to assistance with basic necessities such as food and shelter? If we have civil rights to these benefits, and not just a strong moral case for them, as many advocates claim, then we have (or should have) these civil rights absolutely and across the board, not simply to whatever degree some of us have been discriminatorily denied what law might otherwise promise. And, if we have them, we have them even though there may yet be no existing law that promises protection from these harms. If these existing or possible “civil rights”—rights to a high quality education, to a job, to welfare rights, to a clean environment, to health care, to safety from gun violence, to help with the expenses of retirement or child or elder care, or to a minimum guaranteed income—are civil rights, or possible civil rights, then the phrase “civil rights” clearly means something beyond the rights of antidiscrimination that came to the foreground in the second half of the twentieth century, or rights to the equal protection to existing law, as the phrase was likely understood at the close of the Civil War.</p> <p> Some of these hoped for civil rights do have some relation—even if tenuous—to antidiscrimination or equal protection ideals. The environmental justice movement aims to achieve environmental gains for poor communities—disproportionately Black and Brown—that are themselves disproportionately harmed by pollutants and the effects of climate change, and would most benefit by such a civil right, once translated into strengthened environmental protection laws. If so, then a civil right to environmental justice could and should be viewed as partially resting on either an antidiscrimination or anti-subordination understanding of civil rights. The civil right to gun safety advocated by the gun control movement bears a resemblance to equal protection understandings of civil rights from the post-civil war era: the state’s lack of control of commercial weaponry echoes the southern states’ lack of control of white supremacy, with the resulting violence disproportionately impacting Black communities in both centuries. The still hoped-for civil right to greater assistance with child care and elder care would most benefit poor and female caregivers, echoing the antidiscrimination principle, as it pertains to women and mothers. Nevertheless these as well as other pressing contemporary civil rights movements, such as campaigns for welfare rights to food, housing, health care and education, are clearly not limited to claims to the protection of existing law—they are arguments for the creation of new law, not for a right to the protection of existing law—and would clearly be universalist in scope and ambition, rather than tied to any recognizable theory of discrimination. This new generation of “civil rights” laws may indeed disproportionately impact, and favorably, disadvantaged communities; in fact they almost undoubtedly would. But the heart of the civil right, in all of these cases, would be a right to a flourishing life, not a right to not suffer discrimination or a right to the protections of existing laws.</p> <p> All of these contemporary “civil rights” campaigns in some way aim for equality, as did the civil rights campaigns in the two earlier eras that gave rise to civil rights laws. They all target harms that disproportionately impact disadvantaged communities and would thereby disproportionately benefit them, were they to lead to positive law. But these contemporary civil rights campaigns are strikingly different from their twentieth and nineteenth century counterparts, and in two ways. First, as noted, discrimination itself is not the most pressing or immediate wrong that is at their heart. The harms they are addressing are environmental harms, or economic harms, or harms brought on by violent firearms, or educational deficits, or inadequate housing or health care. And second, the law that is the core of the civil right being sought is <em>aspirational</em>. It doesn’t already exist. This new generation of civil rights are not rights to legal benefits already enjoyed by one majoritarian group but not extended to a minority group. Rather, there is <em>no</em> law, an absence which hurts us all, albeit some more than others: the problem is not that an existing environmental law extends its protections to whites but not Blacks, or that some parents but not others receive state assistance with childcare, or that some but not others are accorded the protection of the criminal law against gun violence. Some of those discriminations may indeed occur, and when they do, they can be rooted out, under the antidiscrimination principle. But for the most part these new civil rights assert rights to new law—to have law, where no law currently exists. They are rights to the protection of not-yet-enacted but needed positive law. The law we currently have is not the baseline. Rather, the law we should have is—it should be created and extended equally.</p> <p> These new civil rights are therefore based, philosophically, not on whatever vision of a good state and a good life is implied by existing law, coupled with a demand of equal protection or nondiscrimination, but instead on some conception of human flourishing—not drawn from existing law—that should be protected by law, but currently is not. Their baseline is not solely the idea that the law we have should protect all of us, or that it should not discriminate among us. It is, rather, the idea that law should promote the human good, and human flourishing (Nussbaum 2000, 2006). A healthy planet, meaningful work, a decent education, and safety in our private lives and communities are prerequisites for flourishing lives. The latest generation of civil rights aims to press law toward the project of creating the legal preconditions for individual and collective lives to flourish. The civil rights now being urged by their advocates are rights that the state be enlisted in the collective effort to ensure that law does so.</p> </div> <div id="bibliography"> <h2 id="Bib">Bibliography</h2> <h3 id="Sta">Statutes, Treaties and Constitutional Provisions</h3> <ul class="hanging"> <li><strong>United States</strong>: <ul class="hanging"> <li>Amendments I through X, The US Bill of Rights, the name given to the first 10 amendments to the US Constitution.</li> <li><a href="https://en.wikisource.org/wiki/Civil_Rights_Act_of_1866" target="other">Civil Rights Act of 1866</a>, 14 Stat 27–30 <em>now codified as</em> 42 U.S.C. §1981 (1999).</li> <li><a href="https://en.wikisource.org/wiki/Enforcement_Act_of_1870" target="other">Civil Rights Act of 1870</a>, 16 Stat 140, also known as the Enforcement Act, <em>now partially codified as</em> 42 U.S.C. §1981 (1986).</li> <li><a href="https://en.wikisource.org/wiki/Ku_Klux_Klan_Act_of_1871" target="other">Civil Rights Act of 1871</a>, 17 Stat. 13, also known as the Ku Klux Klan Act, <em>now partially codified as</em> 42 U.S.C. §1983 (2000).</li> <li><a href="https://en.wikisource.org/wiki/Civil_Rights_Act_of_1875" target="other">Civil Rights Act of 1875</a>, 18 Stat. 335 (1875).</li> <li>Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e17 (1964). 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Zalta & Uri Nodelman (eds.), URL = <<a href="https://plato.stanford.edu/archives/fall2024/entries/civil-rights/">https://plato.stanford.edu/archives/fall2024/entries/civil-rights/</a>>. 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