an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
John Rosenberg’s very interesting set of responses to my previous posts on colorblindness lead me to offer an additional point about colorblindness and baselines.
In a previous post, I pointed out that one’s sense of what constitutes “equal rights” and what constitutes “special rights” for a group depends on the baseline of expectations. I pointed out that Justice Bradley struck down the Civil Rights Act of 1875 because he thought that antidiscrimination laws made black people “the special favorite of the laws.” I also pointed out that if one takes the common law as the baseline of fairness, antidiscrimination laws do in fact shift power from whites to blacks, and that is why many whites opposed them. The common law rules of property and contract, after all, make no distinction based on race; these rules apply to blacks and whites alike, and in this sense they are colorblind. In order to see the Civil Rights Act of 1964 as fair one has to believe that the common law rules of contract and property, although formally neutral as between blacks and whites, are simply unfair when operating against the background of racial stratification in the United States.
John disagrees and says that I am “simply wrong” about this. He replies:
Neither the majority who passed the Civil Rights Act nor those who today defend its attempt to legislate neutral colorblindness "reject the fairness of the common law rules of property and contract."
With all due respect to John, I just don’t think this can be right. Suppose we got rid of the Civil Rights Act of 1964 and returned to the common law rules. Those rules include the right to refuse to contract with others for any reason, including their race. In at-will employment contracts the common law also gives employers the right to fire an employee at will because of their race. Similarly, under the common law rules one was permitted to rent or sell to refuse to rent or sell real property because of race.
Common law rules regarding inns and some places of public accommodation were somewhat different: traditionally, the innkeeper could not refuse service. Apparently in many southern states that common law rule was different-- it did not apply to restaurants and hotels; instead the restaurant or hotel owner had the right to eject people he did not want to serve using the common law rules of trespass. In any case, even where a place of public accommodation could not refuse service to a willing customer, there was no requirement at common law that the facilities had to be integrated. At common law, one could have separate drinking fountains for whites and blacks, and require blacks to sit at the back of the bus, as long as they were allowed on the bus in the first place.
Now the people who fought for the Civil Rights Act of 1964 wanted to change this state of affairs, in which private employers could refuse to hire people because of their race and could fire at will employees because of their race. They also wanted to desegregate privately owned bus lines and dismantle segregation in other places of public accommodation. In short, they wanted to prevent white businessmen from exercising their common law rights.
Now I take it that John believes that these practices were odious. But they were protected by common law rules of contract and property. People who engaged in this practices were simply doing what the common law allowed them to do. So in what sense can he be claiming that these rules are fair?
Whether John recognizes it or not, the Civil Rights Act of 1964 modified the common law baseline of expectations about fair treatment and replaced it with a new one. Under this new regime you could refuse to serve a person because they were not wearing a shirt or shoes, but you could not refuse to serve them because they were black. You could fire at-will employees or refuse to promote employees because they were too short, or too loud, but not because of their race. From now on, racial motivations were now treated differently from all other motivations. Not surprisingly, this change in baselines worked to the advantage of blacks. Antidiscrimination laws are in derogation of common law notions of freedom, and that is why many conservatives opposed them when they were first proposed, arguing that they gave minorities special rights. The same debate is playing out now with respect to gay rights. I hope that the objection that gay rights are special rights is eventually rejected too, and for much the same reasons.
Congressional power to prohibit discrimination. John makes one other rather technical point that I think is worth commenting on. He argues that, contrary to my view, Congress shouldn't be able to pass civil rights legislation prohibiting purely private discrimination through its powers to enforce the 14th Amendment. The reason is that this would require overturning the 1883 Civil Rights Cases, and would also abolish the state action requirement. (The Fourteenth Amendment says that "no state" shall deny equal protection of the laws.)
I've written on this issue at length, and won't repeat all my arguments here. But I do want to point out three things. First, the state action requirement is analytically separate from the scope of Congress's power to prohibit discrimination. Courts might only be able to reach unconstitutional state action, but Congress might have much broader powers under the Fourteenth Amendment to proscribe and prevent violations of civil rights. Second the state action requirement by its own terms does not apply to Congress's powers to enforce the Citizenship Clause. Third, the 1871 and 1875 Civil Rights Acts, which were drafted and enacted by many of the same people who drafted and passed the Fourteenth Amendment, did reach private discrimination. That is the strongest possible evidence that the Civil Rights Cases of 1883 are inconsistent with original understanding of Congress's powers under the Fourteenth Amendment. (I'm not an originalist, but for those who think that original understanding matters, this is a powerful argument). Moreover, as historians of Reconstruction have pointed out, the result in the Civil Rights Cases appears to reflect not the original understanding but the changed racial politics of the Compromise of 1876, in which Northern whites ended Reconstruction and basically acquiesced to Southern white domination of their black populations. The history shows that the motivations behind limiting Congress's power to pass civil rights laws in the Civil Rights Cases were racist, even though the purported justification was states rights (sound familiar?). The Supreme Court has ratified and extended the result of the Civil Rights Cases in United States v. Morrison. But I don't think that case was correctly decided either, and I think it's a disgrace that it relied on the Civil Rights Cases to limit Congressional power to pass new civil rights legislation.