Equality by Statute: Legal Controls over Group Discrimination

Equality by Statute: Legal Controls over Group Discrimination

Equality by Statute: Legal Controls over Group Discrimination

Equality by Statute: Legal Controls over Group Discrimination

Excerpt

"Where assurance of good conduct in . . . fields of public concern has not been forthcoming from citizen groups," observed President Truman's Commission on Higher Education in 1947, "the passage of laws to enforce good conduct has been the corrective method of a democratic society."

But can the passage of laws really enforce good conduct if the laws are not popularly supported--as, in fact, has often been the case in Western society and in the United States? Morris R. Cohen once made a remark that must always be considered simultaneously with this observation of the President's Commission. "That in a democracy the law is the will of the people," he said, "is a statement not of a fact but of an aspiration." Laws can be enacted in response to the demands of a small minority, or without the knowledge of the majority; and much law is created by courts and administrative agencies, not merely by representative legislatures.

Americans seem to want laws expressing high ideals, but they seem also to want the convenience of ignoring or violating many of them with impunity. Our Federal Constitution and statutes clearly require a general equality of treatment for all individuals, but our conduct just as clearly denies this condition to many millions, citizens and noncitizens, in all regions. In recent years, Americans have shown some concern over the difference between the broad legal standard on the one hand and particular legal measures and discriminatory practices on the other. This interest in civil rights has taken an especially legal turn: those who want to improve group relations show a new reliance upon law as a means of social control.

Such reliance, in the specific forms it has taken, and by the . . .

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