1866 Civil Rights Act A descriptive point & some words about the elephant in the room.
VOLOKH at law.ucla.edu
Fri Jun 8 15:49:46 PDT 2007
I appreciate Michael's remarks, but let me quibble a little
about this item:
> What it looks like to me is that we have a more authoritarian
> approach to individual rights and a reaction against equality.
Especially as applied to the Court's interpretation of the Civil
Rights Act of 1866 -- only a part of what Michael was referring to, but
the part that triggered the post -- authoritarianism and equality are
not antitheses. Rather, the Court's interpretation of the Civil Rights
Act of 1866 was pro-equality *and* authoritarian.
Recall that if actually fully followed, the Court's
interpretation would mean that one couldn't discriminate based on race
in choice of roommate, or nanny, or store at which you wanted to shop.
It would apply to discrimination in favor of blacks or Jews or Arabs
(e.g., if someone wanted to shop from stores owned by fellow ethnic
Jews) as well as discrimination against those groups and in favor of
whites. It is thus authoritarian in the sense of being restrictive of
It is also authoritarian in the sense of involving the Court's
fiat rather than democratic decisionmaking. True, the Court's decision
could have been reversed through the democratic process -- but as we
know, the American democratic process has enough checks on change
(bicameralism, the Presidential veto, the committee system in Congress,
and more) that the Court's interpretations are often very sticky.
Now it may well be that this authoritarianism is justified in
the name of equality, though it seems to me that sticking with what
Congress was by that time actually and deliberately enacting would not
have materially retarded the cause of equality, while still preserving
some well-justified islands of individual freedom of choice (for
instance, Congress's decision not to bar discrimination in consumer
contracting, or in hiring by small employers, or in housing where one
was choosing a housemate or roommate and not just a tenant who lives far
from where you live). But I think we should recognize that here the
Court's reaction in favor of equality *was* "a more authoritarian
approach to individual rights."
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