Universalism and Civil Rights (with Notes on Voting Rights after Shelby)

By Bagenstos, Samuel R. | The Yale Law Journal, June 2014 | Go to article overview

Universalism and Civil Rights (with Notes on Voting Rights after Shelby)


Bagenstos, Samuel R., The Yale Law Journal


ESSAY CONTENTS  INTRODUCTION I.   EXAMPLES OF UNIVERSALIST APPROACHES TO CIVIL RIGHTS LAW      A. A Working Definition of Universalism      B. Examples of Universalistic Approaches to Civil Rights II.  TACTICAL ADVANTAGES OF UNIVERSALIST APPROACHES      A. The Tactical Argument for Universalism         1. Secure Political Support         2. Ensure Broad Judicial Implementation      B. Problems with the Tactical Argument         1. Undermine Political Support and Dilute Judicial            Willingness to Enforce         2. Become Coded as Serving a Particular Group III. SUBSTANTIVE ADVANTAGES OF UNIVERSALIST APPROACH ES      A. The Substantive Argument for Universalism         1. More Effectively Address Discrimination         2. Address Broader but Important Problems of Inequality and            Injustice      B. Problems with the Substantive Argument IV.  EXPRESSIVE ADVANTAGES OF UNIVERSALIST APPROACHES      A. The Expressive Argument for Universalism      B. Problems with the Expressive Argument V.   NOTES ON VOTING RIGHTS AFTER SHELBY COUNTY      A. Unpacking the Post-Shelby Universalist Proposals      B. Critiquing the Post-Shelby Universalist Proposals CONCLUSION 

INTRODUCTION

After the Supreme Court invalidated the core of the Voting Rights Act's preclearance regime in Shelby County v. Holder, (1) civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act that targeted voting discrimination based on race or ethnicity. These responses instead sought to eliminate certain problematic practices that place too great a burden on any individual's vote. (2) I will call responses like these universalist (or, sometimes, universalistic), because rather than seek to protect any particular group against discrimination, they provide uniform protections to everyone (at least as a formal matter). As Bruce Ackerman shows in his latest We the People volume, voting rights activists confronted a similar decision regarding whether to pursue a universal approach--and at least some of them opted for universalism--during the campaign to eliminate the poll tax. (3)

The voting rights context is hardly unique. Across an array of different contexts, scholars and activists have proposed universalist responses to address problems that group-oriented civil rights approaches have not fully resolved. These contexts include affirmative action in higher-education admissions, regulation of the employment relationship, disability inequality, and the interpretation of the Fourteenth Amendment generally. (4) My own work has often advocated such universalist responses to civil rights problems. (5)

Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; (6) substantively, in aggressively attacking the structures that lead to inequality; (7) and expressively, in avoiding essentializing identity and emphasizing human commonality across groups. (8) But they have possible drawbacks along all three of these dimensions as well. Scholars who advocate universalist approaches to civil rights problems have too often conflated the tactical, substantive, and expressive arguments for these positions or simply focused on whichever of these dimensions supports a universalistic position without considering the others. These errors, I will argue, have led those scholars to be unduly sanguine about the effectiveness of universalism in the civil rights context.

To assess the effectiveness of universalistic approaches to civil rights--whether in general or in a particular case--requires examination of each of three dimensions: tactics, substance, and expressivism. As I hope to show in this essay, when considered along all of these dimensions, neither universalistic nor particularistic approaches can fully address our civil rights problems. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Universalism and Civil Rights (with Notes on Voting Rights after Shelby)
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.