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Two Conceptions of Civil Rights*

Published online by Cambridge University Press:  13 January 2009

Richard A. Epstein
Richard A. Epstein
Affiliation:
Law, The University of Chicago
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Extract

I. WhatVintage ofCivilRights?

In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are nonetheless denied their civil rights if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue (and be sued) in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections did not guarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well.

Type
Research Article
Information
Social Philosophy and Policy , Volume 8 , Issue 2 , Spring 1991 , pp. 38 - 59
Copyright
Copyright © Social Philosophy and Policy Foundation 1991

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References

1 Analogous issues could be raised in connection with participation in public affairs, including the right to vote, but for reasons of time and space I do not consider these issues systematically here. There, the narrow conception is the right of suffrage; the more modern is the right to have more effective votes for certain groups, as under the Voting Rights Act, 42 U.S.C. §§1971–1973 (1982).

2 The original 1866 statutes have been codified. In its present form 42 U.S.C. § 1981 (1982) provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Similarly, 42 U.S.C. §1982 (1982) provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

3 The flexibility here is identical to that given to the state when it is allowed to take property for public use without the consent of the citizen upon payment of just compensation. With substantial regulation, the usual test for seeing whether the just compensation clause is satisfied is the “disproportionate impact” test, which assumes that the regulation will be permissible if it hits the supporters of the regulation as hard as its opponents. For a judicial endorsement, see Armstrong v. United States, 364 U.S. 40, 49 (1960). For a general account of the principle, see Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard, 1985)Google Scholar, ch. 14. For an application in the civil rights context, see the discussion in note 20 below of Laving v. Virginia, 388 U.S. 1 (1967).

Note, however, that the test is underindusive: a statute that is formally equal may still have a disproportionate impact. The theme is ironically familiar, given the enormous stress that has been placed on disparate treatment tests in employment discrimination cases. See Griggs v. Duke Power Co., 401 U.S. 424 (1971). I have attacked the Griggs line of cases in my forthcoming book, The Antidiscrimination Laws in Employment: A Legal and Economic Analysis (Cambridge: Harvard University Press, 1991), ch. 10.

4 Note that, in my view, these arguments show conclusively that the decisions of the Supreme Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) and Runyon v. McCrary, 427 U.S. 160 (1976) were wrong as a matter of statutory construction, even if not overruled in Patterson v. McLean Credit Co., 109 Sup. Ct. 2363 (1989). Thus Justice Stewart incorrectly writes in Jones: “So long as a Negro citizen who wants to buy or rent a home can be turned away simply because he is not white, he cannot be said to enjoy ‘the same right… as is enjoyed by white citizens… to… purchase [and] lease real and personal property’” (emphasis in original). But so long as a white person can turn away another person because he is white, as was the case, then the rights do remain equal, so long as blacks can turn away whites as well.

Note too that the original text of §1981 applies to “all persons” and §1982 applies to “all citizens” of the United States. Treating the section as though it imposed duties not to discriminate on the grounds of race is to insist that these duties be imposed not only on employers, innkeepers, and landlords, as is the case under the 1964 Act, but upon the ordinary citizens who are their employees, customers, and tenants – a giant step that not even the Supreme Court has taken. Treating the sections of the Civil War statutes as capacity-generating only avoids these problems. Capacity is a precondition to take the role of either employer or employee, landlord or tenant. It must be extended to “all persons” to insure equal levels of freedom for (tautologically) all persons.

5 Title II of the Civil Rights Act of 1964 provides:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. (Section 201(a), 42 U.S.C. § 2000a(a) (1988)).

The 1964 Act then defines public accommodations to include inns, hotels, motels, restaurants, movie theatres, and the like (Section 201 (b), 42 U.S.C. § 2000a(b)).

6 Title VII of the Civil Rights Act provides:

Section 703. (a) It shall be an unlawful employment practice for any employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin.

42 U.S.C. § 2000e-2(a) (1982).

7 Title VII extended its protection to any individual; in my judgment, it could never have been passed if an exception for affirmative action had been accepted by its champions in 1964. It was read into the statute in United Steelmakers v. Weber, 443 U.S. 193 (1979). No parallel affirmative action exception has ever been read into Title II on public accommodations, although it contains the parallel phrase “all persons.”

8 I addressed the issue of contracting at will in “In Defense of the Contract at Will,” University of Chicago Late Review, vol. 51 (1984), pp. 947–82. In that essay I skirted over the tension between the at-will contract and the anti-discrimination law, which is the focus of the discussion here.

9 See Coleman, , “Economics and the Law: A Critical Review of the Foundations of the Economic Approach to Law,” Ethics, vol. 94 (1984), p. 649CrossRefGoogle Scholar, for an account of the various economic measures of social welfare.

10 See the discussion of disparate impact in note 3.

11 See, e.g., Richard Epstein, Taking; “In Defense of the Contract at Will”; “Notice and Freedom of Contract in the Law of Servitudes,” Southern California Law Review, vol. 55 (1982), pp. 1353–68.

12 On which see Tullock, , “The Welfare Costs of Tariffs, Monopolies, and Theft,” Western Economic Journal, vol. 5 (1967), pp. 224.Google Scholar

13 See Rawls, John, A Theory of Justice (Cambridge: Harvard, 1971).Google Scholar His veil of ignorance is, of course, heavily influenced by an earlier tradition that evaluates conduct from the position of an objective, independent observer. See also Alexander, Larry, “Liberalism As Neutral Dialogue: Man and Manna in the Liberal State,” U.C.L.A. Law Review, vol. 28 (1981), esp. pp. 822–26Google Scholar, noting the reasons to think on balance that Rawls is not a libertarian (for example, the collective ownership of natural talents), as well as the strands in his thought that point the other way (for example, his opposition to forced transfers of body parts).

14 Analogous arguments can be made to show the relative dominance of the libertarian rights against force and fraud over the modern conception of welfare rights – that is, rights to minimum subsistence provided by others in case of need. See generally Epstein, , “The Uncertain Case for Welfare Rights,” Brigham Young Law Review (1985), pp. 200–229.Google Scholar

15 388 U.S. 1 (1967).

16 Ibid., p. 8.

17 Ibid., p. 10.

18 See ibid., p. 11, n. 11.

19 198 U.S. 45 (1905). By a 5–4 marjority, the Supreme Court in Lochner struck down a statute that allowed certain types of bakers to work only a 10-hour day. The decision has been widely condemned as an improper limitation on the legislative power to regulate the conditions of working men and women; it was eventually overturned by the Supreme Court during the New Deal. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937), upholding a minimum wage law for women.

Strains of Lochner do occasionally appear, although in radically different contexts. “We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment ‘does not enact Mr. Herbert Spencer's Social Statics’,” said the Court in Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966), only to thereafter strike down a formally neutral poll tax because of its disparate impact. I think that Lochner was rightly decided. See Epstein, , “The Mistakes of 1937,” George Mason University Law Review, vol. 11 (1988), p. 5.Google Scholar

20 See Laving, p. 7, where the Court noted that the state had claimed that the legitimate purposes of its statute were “to preserve ‘the racial integrity of its citizens’ to prevent ‘the corruption of the blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride,’ obviously an endorsement of the doctrine of White Supremacy.” Even the morals head of the police power, its most elusive component, had only been construed to cover such matters as prostitution, obscenity, blasphemy, and indecent exposure. For a systematic account of the police power as it applies to the control of external harms, see Takings, chs. 9 and 10, dealing respectively with the ends and means of the police power.

21 See the discussion of endogenous preferences below.

22 For my early defense of this position, whose implications become ever broader with time, see Epstein, , “Unconscionability: A Critical Reappraisal,” Journal of Law and Economics, vol. 18 (1975), pp. 293.CrossRefGoogle Scholar The assumption itself is far older; it was discussed early on in Dicey, A.V., Introduction to the Study of the Law of the Constitution (7th ed.; London: Macmillan, 1907).Google Scholar

23 For an early statement of the sentiment, see Sovern, M., Legal Restraints on Racial Discrimination in Employment (New York: The Twentieth Century Fund, 1966)Google Scholar, ch. I.

24 “In Title VII, we seek to prevent discriminatory hiring practices. We seek to give people an opportunity to be hired on the basis of merit, and to release the tremendous talents of the American people, rather than to keep their talents buried under prejudice or discrimination.” Statement of Senator Humphrey, 110 Cong. Rec. 6548.

25 See Wilkerson, Isabel, “Black Fraternities Thrive, Often on Adversity,” New York Times, October 2, 1989, p. 1Google Scholar, col. 2, on the rise of black fraternities.

26 See Griggs v. Duke Power Co., 401 U.S. 424 (1971), which stated the law on this subject until Wards Cove v. Atonio, 109 S.Ct. 2115 (1988), which the proposed Civil Rights Act of 1990 is intended to overrule.

27 See generally Snyderman, Mark & Rothman, Stanley, The I.Q. Controversy, the Media, and Public Policy (New Brunswick: Transaction Books, 1988), pp. 1–41.Google Scholar Of these elements, “subjective impressions” are the most difficult to deal with, for they are so critical to the hiring and promotion process and yet (from the point of view of a regulator) so difficult to control. The Supreme Court has sought to deal with the subjective element in Price Walerhouse v. Hopkins, 109 S.Ct. 1775 (1989), but the issue is likely to remain intractable over time.

28 The basic statute provides:

Notwithstanding any other provision of this subchapter (1) it shall not be an unlawful employment practice for an employer to hire and employ employees,… on the basis of his religion, sex or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (Section 703(e), 42 U.S.C. § 2000e-2(e) (1982)).

Today the EEOC guidelines on the subject make it clear that any cost differentials borne by the employer are irrelevant. See § 29 C.F.R. 1604.2 (1988). For the judicial interpretation of the BFOQ, see Dothard v. Rawlinson, 433 U.S. 321 (1977); Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969).

29 See Regulations at Section 1604.

30 See, e.g., Elster, J., Sour Grapes: Studies in the Subversion of Rationality (Cambridge: Cambridge University Press, 1983).CrossRefGoogle Scholar

31 Sunstein, , “Legal Interference With Private Preferences,” University of Chicago Law Review, vol. 53, pp. 1135–36Google Scholar; “Disrupting Voluntary Transactions,” in Markets and Justice (Nomos, XXXI), eds. J., Roland Pennock and Chapman, John W., p. 279 (New York: New York University Press, 1989).Google Scholar

32 Sunstein, “Legal Interferences with Private Preferences,” pp. 1135–36. The reference to “facilitative” is footnoted to my Takings, p. 6, which suggested that the state only “enforces the rights and obligations generated by theories of private entitlement.” Apart from the objections considered in the text, I think that Sunstein's argument in this passage suffers from two other defects. First, it embodies an unnecessarily abstract notion of “preferences about preferences.” It is ordinarily sufficient to say that where parties face a prisoner's dilemma game, they should rationally prefer a set of rules that prevent ex ante the prospect of defection ex post. Second, it romanticizes the world of politics by understating the ferocity of self-interest politics in the legislative realm. For further elaboration, see Epstein, , “A Last Word on Eminent Domain,” Miami Law Review, vol. 41 (1986), pp. 253, 259–63.Google Scholar See also Sunstein, , “Two Faces of Liberalism,” University of Miami Lav Review, vol. 41 (1986), pp. 245–52.Google Scholar

33 See, e.g., Levmore, Saul, “Variety and Uniformity in the Treatment of the Good-Faith Purchaser,” Journal of Legal Studies, vol. 16 (1987), pp. 43–65.CrossRefGoogle Scholar Thus Levmore notes that there is a uniform cultural response to theft that cuts across all legal cultures, precisely because its disastrous consequences are well understood – at least at an intuitive level. Nonetheless, on the follow-up question – should an innocent purchaser prevail against the original owner whose property had been wrongfully taken or converted? – the legal responses are far more diverse, both across and within legal systems, precisely because it is very hard to find any knock-down argument which places the risk of loss on either the original owner or the subsequent purchaser.

34 See Klein, Benjamin & Loeffler, Keith, “The Role of Market Forces in Assuring Contractual Performance,” Journal of Political Economy, vol. 89 (1981), p. 615CrossRefGoogle Scholar; Telser, Lester, “A Theory of Self-Enforcing Contracts,” Journal of Business, vol. 53 (1980), p. 27.CrossRefGoogle Scholar

35 See text at note 20 for a brief discussion of the police power.

36 But it is not riskless. There are serious dangers that sensible business practices – for example, tie-in sales or exclusive dealing contracts – will be regarded as illegal even though they produce a net social benefit. There is also the risk that the administrative tangle of enforcing legal restrictions in economic contexts may exceed the allocative gain. But to enter into these complications in this paper is to go too far astray.

37 For the situation at common law, see Allnutt v. Inglis, 12 East 527, 104 Eng. Rep. 206 (1810).

38 See on price discrimination generally Friedman, David, Price Theory: An Intermediate Text (Cincinnati: South-Western, 1986), pp. 215–261.Google Scholar

39 See text at notes 31–33.

40 See Smyth v. Ames, 169 U.S. 466 (1898), which subjects regulation to a just compensation standard, precisely because of the fear of confiscation. For the most recent Supreme Court decision which shows a somewhat heightened awareness of the problem identified in Smyth, see Duquesne Power & Light v. Barasch, 109 Sup. Ct. 609 (1989).

41 See, e.g., Time Magazine, August 14, 1964, p. 51, in a story called “Hoss Unhorsed,” which begins as follows:

In St. Augustine, Fla., most of the previously white-only motels and restaurants began serving Negroes as soon as the Civil Rights Act became law. The owners wanted peace; racial violence already had cut the tourist trade by 50%. Yet a few days later, most places were resegregated. An army of white racists, the owners said, had forced them to lock out Negroes once more on pain of assault or worse.

“Hoss” was one of the white racists whose efforts to thwart segregation by force were overcome by federal intervention.

42 See Hart, H.L.A., Law, Liberty, and Morality (London, Oxford Press, 1963), p. 46Google Scholar: “[A] right to be protected from the distress which is inseparable from the bare knowledge that others are acting in ways you think wrong, cannot be acknowledged by anyone who recognizes individual liberty as a value.” Hart men goes on to use this premise to attack utilitarians, who are required to take these harms into account in fashioning these rules. I believe that a utilitarian can escape these charges by noting the imperfections of public enforcement, which strongly militate in favor of a uniform rule of the sort Hart defends. See Epstein, , “The Utilitarian Foundations of Natural Law,” Harvard Journal of Law and Public Policy, vol. 12 (1989), pp. 742–45.Google Scholar

43 See Texas v. Johnson, 109 Sup.Ct. 2533 (1989).

44 The phrase comes from Magruder, , “Mental and Emotional Disturbance in the Law of Torts,” Harvard Law Review, vol. 49 (1936), p. 1039.CrossRefGoogle Scholar