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
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. …