New From Christopher Schmidt: The Sit-Ins: Protest and Legal Change in the Civil Rights Era @cwschmidt1 ‏

Christopher Schmidt, Chicago-Kent College of Law, has published The Sit-Ins: Protest and Legal Change in the Civil Rights Era (University of Chicago Press, 2018).  Here from the publisher's website is a description of the book's contents.

On February 1, 1960, four African American college students entered the Woolworth department store in Greensboro, North Carolina, and sat down at the lunch counter. This lunch counter, like most in the American South, refused to serve black customers. The four students remained in their seats until the store closed. In the following days, they returned, joined by growing numbers of fellow students. These “sit-in” demonstrations soon spread to other southern cities, drawing in thousands of students and coalescing into a protest movement that would transform the struggle for racial equality.
The Sit-Ins tells the story of the student lunch counter protests and the national debate they sparked over the meaning of the constitutional right of all Americans to equal protection of the law. Christopher W. Schmidt describes how behind the now-iconic scenes of African American college students sitting in quiet defiance at “whites only” lunch counters lies a series of underappreciated legal dilemmas—about the meaning of the Constitution, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. The students’ actions initiated a national conversation over whether the Constitution’s equal protection clause extended to the activities of private businesses that served the general public. The courts, the traditional focal point for accounts of constitutional disputes, played an important but ultimately secondary role in this story. The great victory of the sit-in movement came not in the Supreme Court, but in Congress, with the passage of the Civil Rights Act of 1964, landmark legislation that recognized the right African American students had claimed for themselves four years earlier. The Sit-Insinvites a broader understanding of how Americans contest and construct the meaning of their Constitution.
 

Comics, Taxes, and Civil Rights

Winnipeg high school student Elly Hooker has won a national award for the comic she created which tells the story of Nova Scotian Viola Desmond's fight for civil rights. Ms. Desmond, born in Halifax, became famous in 1946 for refusing to sit in a segregated area of a New Glasgow, Nova Scotia, movie theater.  She didn't realize that the ticket she had bought was only good for a balcony seat, where all African-Canadians had to sit. Downstairs seating was only for white Canadians. She wanted to purchase a downstairs ticket but the cashier refused. When she tried to take a downstairs seat, police arrested her. The next day, she paid a fine for refusing to pay the one cent difference between the ticket prices (based on the "amusement tax" due to the provincial government).

She eventually appealed to the courts. Although she died in 1965, her sister continued the fight for her. In 2010, the then Lieutenant-Governor of Nova Scotia granted Ms. Desmond a pardon. In 2016, the Bank of Canada chose Viola Desmond as the first Canadian woman to appear on a Canadian banknote (the ten-dollar bill).

Ms. Hooker will receive the Kayak Kids' Illustrated History Challenge in Ottawa for her comic celebrating Viola Desmond.

A short Viola Desmond bibliography below:

Heritage Minutes: Viola Desmond; Historica Canada: Heritage Minutes

How Civil Rights Icon Viola Desmond Helped Change Course of Canadian History

The Story of Viola Desmond, "Canada's Rosa Parks"

Who's the Woman on Canada's New $10 Bill? A Viola Desmond Primer

Representative John Lewis and the Graphic Novel

Representative John Lewis (D-Georgia) has won the Eisner Award for Best Reality Based Work for his second graphic novel, and the second volume in his autobiography, March, Book Two (published in 2015). Co-winners are Andrew Aydin and Nate Powell. The book continues Representative Lewis' memoir of his work and experiences during the civil rights movement of the 1960s.

Read more here:

Erin Blackmore, Remembering the Civil Rights Movement...With Comics, JSTOR Daily.

Kim Lacy Rogers, Oral History and the History of the Civil Rights Movement, 75 Journal of American History 567-576 (September 1988).

Pye on African-American Lawyers and the Civil Rights Movement Before Brown v. Board of Education

David Kenneth Pye has published Before Civil Rights Was in Vogue: The Black Lawyer Before Brown. Here is the abstract.

Scholars cannot become too infatuated with Equal Protection arguments. Doing so blinds them to the various tactics employed by the pre-Civil Rights Movement African American bar to combat racial segregation and discrimination. Ignoring the actual arguments of historical actors is a form of teleology, in which we allow our knowledge of the present to direct how we interpret the past. History becomes less objective when done in this manner. Moreover, lawyers of today, when presented with teleological scholarship, can remain blind to possibilities open to them to defend clients in the embattled black community and beyond.

Download the article from SSRN at the link.

Civil Liberties In a Time of Fear: The Japanese American Incarceration and the Threat To Muslim Americans: Panel Discussion Oct. 27, 2016 at the Japanese American National Museum

From the mailbox:

The Harvard Law School Association of Los Angeles, the Japanese American National Museum, and the Japanese American Bar Association invite you to join them for a panel discussion:

Civil Liberties In a Time of Fear: The Japanese American Incarceration and the Threat To Muslim Americans

Thursday, October 27, 2016

Speakers include Karen Korematsu, Dr. Irum Shiekh, Edina Lekovic. Warren Olney, host and executive producer of To the Point, moderates. 

  

More here at the HLSA website.

Call For Papers For a Special Issue of The Black Scholar

From the mailbox:

Black Liberation: From Political Thought to Political PowerA Special Issue of The Black Scholar

In the past 15 years, a careful but primarily historical re-evaluation of the Black Power movement in the United States has emerged.  We have seen a proliferation of anthologies, case studies, and essays devoted to outlining its major trends and themes, with an emphasis on marking both its continuities and discontinuities with the Civil Rights Movement.  Such scholarship joins recent work on earlier legacies of black radicalism, stretching back to the beginning of the 20th century and highlighting the relationship of African American activists to the labor movement, socialism and communism, feminisms, and anti-colonial struggles worldwide. This work has helped transform the conventional and flawed narrative that depicts the trajectory of black struggle following the passage of the Civil Rights and Voting Rights Acts and after the assassination of Martin Luther King in 1968 as one of decline and outright failure. Indeed, the increasing frequency of riots, the armed nationalist militancy of groups like the Revolutionary Action Movement and the Black Panthers, and the seemingly separatist turn of organizations like SNCC were interpreted as forms of radicalism incompatible with mainstream paths to racial and social justice. These new studies have forced us to account for the multiple and often divergent ways in which calls for Black Power qua self-determination and autonomy were taken up in specific contexts and conjunctures, spanning the terrains of education, community control, urban housing, guerilla warfare, entrepreneurial endeavors, and more. These movements fit into a much longer history of political thought, as black radicals in the post-civil rights era revisited the analyses and practices of earlier movements and figures. The Black Power movement thus represents one moment in a long legacy of strategic and political experimentations, involving new sets of political subjects and organizational forms that cannot be restricted to ethnic or interest group-specific discourses.This special issue of The Black Scholar is concerned with developing further reflection on the theoretical contribution of these movements. We are concerned not only to elaborate on the social and political activity revealed by historical scholarship, but to reflect on the relationship of these movements to the overall body of political thought. Some topics of concern: the Black Panther Party’s inclusion of familial and domestic domains in its understanding of the possibilities of urban spatial politics; how the League of Revolutionary Black Workers strategized around the overlaps between workplace struggles and larger societal issues; SNCC’s attempts to develop local organs of political power in the South; the Black Liberation Army’s articulation of political sovereignty through their program of outright guerilla war; the rising power of street gangs in Chicago with explicitly political aims; the relationship of the Black Lives Matter movement to its theoretical forebears, and the nuanced negotiation of black nationalism and liberal integrationism by early black communists as they re-articulated the “identity” problems of race, class, gender, and community.  Black radicals and theoreticians have long drawn on the past to articulate new perspectives on old problems, and this issue of The Black Scholar seeks to both highlight and engage with those efforts.Seeking the insights of historians and political theorists alike, the issue invites essays with approaches to the following topics:

• examinations of the historical relationship between Black/Ethnic/Area Studies and Western or “mainstream” political theory

• intellectual histories of the influence of classical political thought on segments of the black liberation movement

• engagements with the theory and practice of black political organizations and movements particularly after 1968

• the theoretical and intellectual links between early 20th century and late 20th century black movements

• discussions of the continuities and breaks in the practices of black communisms and socialisms

• the political thought and practice of militant black revolutionary, guerilla, and “terrorist” organizations

• the history and theoretical groundings of black capitalism

• the theoretical, political, and economic import of U.S.-based gangs and organized crime

• theoretical analyses of infrapolitics and everyday resistance

• new constructions of gender and/or race as produced through black social movements

• the historical and political-theoretical genealogy of the Black Lives Matter movement

• historical debates within black social movements about the ideal site or object of political organization

This issue anticipates that the suggested topics in the list above, or relevant topics not listed, will engage scholars in Black/Africana Studies, Political Theory and Philosophy, Political Science and Social Movement Studies, History, Sociology, Geography, Feminist Studies, and Economics.

Abstracts (750 words max) should be submitted by October 16, 2016, and full articles (5000-7000 words) will be expected in late Spring 2017, to special guest editors Delio Vasquez and Patrick King at (blackthoughtpoliticalpowerTBS@gmail.com).

Publication of the special issue is slated for summer/fall 2018. When preparing manuscripts, please follow The Black Scholar Submission Guidelines.

http://www.theblackscholar.org/call-for-papers/black-liberation-from-political-thought-to-political-power/

Goluboff's Vagrant Nation: Police Power, Constitutional Change, and the Making of 1960s: A New Book From Oxford University Press

Risa L. Goluboff, University of Virginia School of Law, has published Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford University Press, 2016). Here is a description of the book's contents (from the publisher's website).  

 

Eyer on Ideological Draft and the Forgotten History of Intent

Katie R. Eyer, Rutgers Law School, is publishing Ideological Drift and the Forgotten History of Intent in volume 51 of the Harvard Civil Rights-Civil Liberties Law Review (2016). Here is the abstract.

It would no doubt surprise many readers of contemporary Equal Protection scholarship to hear intent doctrine described as one of the major racial justice victories of the Brown v. Board of Education era. Instead, under the account familiar to most contemporary readers, the institutionalization of intent was a conservative development, marking a turn away from racial justice concerns in the mid- to late 1970s. Drawing on archival and other historical source materials, this Article contends that the former account in fact represents the true genesis of intent doctrine in Equal Protection jurisprudence. During the Plessy v. Ferguson era, restrictive doctrines barred racial justice advocates from challenging laws based on their invidious intent. Intent doctrine arose in the aftermath of Brown as a response by progressive actors to the ways that these Plessy era doctrines allowed rampant Southern evasion of Brown’s desegregation mandate. Understanding this progressive history of intent doctrine has important implications. There are strong reasons to believe that these early progressive struggles to establish intent-based invalidation helped facilitate the 1970s-era conservative turn in intent doctrine that progressive scholars today decry. Thus, although the normative valence of intent doctrine shifted from progressive to conservative in the early to mid-1970s, progressive and moderate Justices on the Court were slow to realign their own doctrinal preferences. As a result, the Court’s progressive wing rarely resisted — and at times aided — the conservative doctrinal developments of the mid- to late 1970s. The long history of intent therefore may help us to better understand the genesis of a phenomenon that scholars have long observed: the realignment of Equal Protection doctrine away from racial justice aims. And the long history of intent suggests that it is not only politics, but also doctrine, that plays a key role. Thus, while changes in popular sentiment serve as the backdrop to shifts in the Court’s normative orientation, it is the cooptation of progressive doctrine that renders such shifts familiar and unobjectionable to the Court.

Download the article from SSRN at the link.

The Case of Loving v. Virginia Hits the Big Screen

The Hollywood Review reviews the new film Loving, which dramatizes the case of Loving v. Virginia (1967). Richard and Mildred Loving challenged the Virginia statute which forbade interracial marriage, a case which eventually ended up in the U. S. Supreme Court and led to a landmark ruling that invalidated such laws. The new film stars Joel Egerton and Ruth Negga. The Loving case has been brought to the screen before--as a made for television movie, Mr. and Mrs. Loving (1996), starring Timothy Hutton and Lela Rochon (a wonderful film, but hard to find on DVD--it may be embargoed), and as a 2011 documentary, The Loving Story, featuring Jane Alexander and directed by Nancy Buirski.

Tidmarsh on the English Fire Courts and the American Right to a Federal Civil Jury Trial

Jay Tidmarsh, Notre Dame Law School, is publishing The English Fire Courts and the American Right to Civil Jury Trial, in volume 83 of the University of Chicago Law Review. Here is the abstract.

This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation. Parliament enacted fire-courts legislation on eight occasions between the mid-seventeenth century and the nineteenth century. The Article particularly emphasizes the first and largest of these courts, established after the Great Fire of London in 1666. Archival research into 1,585 cases resolved by the London Fire Court reveals that the Court never employed juries to resolve contested factual matters. The Article argues that the history of these courts provides a limited but clear power for Congress to strike civil juries in federal court.

Download the article from SSRN at the link.

Fawaz on Superheroes as Social Leaders and Radical Leaders in American Politics

Ramzi Fawaz has published The New Mutants: Superheroes and the Radical Imagination of American Comics (New York University Press, 2016). Here is a description of the book's contents from the publisher's website.

In 1964, noted literary critic Leslie Fiedler described American youth as “new mutants,” social rebels severing their attachments to American culture to remake themselves in their own image. 1960s comic book creators, anticipating Fiedler, began to morph American superheroes from icons of nationalism and white masculinity into actual mutant outcasts, defined by their genetic difference from ordinary humanity. These powerful misfits and “freaks” soon came to embody the social and political aspirations of America’s most marginalized groups, including women, racial and sexual minorities, and the working classes. In The New Mutants, Ramzi Fawaz draws upon queer theory to tell the story of these monstrous fantasy figures and how they grapple with radical politics from Civil Rights and The New Left to Women’s and Gay Liberation Movements. Through a series of comic book case studies – including The Justice League of America, The Fantastic Four, The X-Men, and The New Mutants –alongside late 20th century fan writing, cultural criticism, and political documents, Fawaz reveals how the American superhero modeled new forms of social belonging that counterculture youth would embrace in the 1960s and after. The New Mutants provides the first full-length study to consider the relationship between comic book fantasy and radical politics in the modern United States.

VanderVelde on the Dred Scott Case in Context

Lea S. VanderVelde, University of Iowa College of Law, has published The Dred Scott Case in Context at 40 Journal of Supreme Court History 263 (2015). Here is the abstract.

This essay concisely summarizes several new discoveries about the Dred Scott case. It argues that only by examining three broader contexts does the case make sense and can its significance be seen. Contextual examination is necessary because the stipulated facts taken at face value make little sense. For example, how could aged slave bring a lawsuit in the first place and sustain it for eleven years against a master who lived in far-away New York? This seeming irrationality has led to speculation about motives which is, in fact, wrong. The case can only be explained by resort to three contexts in which the case is embedded. They are: 1) the national geography of westward migration, 2) local Missouri law, and 3) the parties’ intimate relationships to persons, who were not named in the case. Theoretically, this essay argues that these contexts are useful, if not essential, to understanding most high-profile, high-significance lawsuits, like Dred Scott v. Sanford. The first context highlights the larger role that slaves played in the nation’s expansion. There was a steady stream of slave petitioners who satisfied the criteria for freedom by having lived on free soil (freedom-by-residence) before arriving at the St. Louis courts in a slave state. The second context, local law, demonstrates certain aspects of the Missouri statute authorizing freedom suits. In many circumstances, Missouri law provided petitioning slaves with lawyers and a series of successful suits under that law created local expectations that slaves could sue for freedom and win. These two contexts demonstrate that the Scotts should have won the case easily, under Missouri law in the Missouri courts, until the Missouri Supreme Court changed course. The third context highlights other people who had a stake in the outcome. On the plaintiffs’ side, changing the incentives, were Mrs. Dred Scott (Harriet) and the Scotts’ daughters. Harriet Scott’s status as a mother rendered her more legally relevant to the family’s stability because the daughters’ legal status hinged on the determination of their mother’s status. So recognizing Mrs. Scott and the children’s stake in the case helps explain the litigants’ tenacity. Behind the defendant, John F. A. Sanford was his extended family, the slave-holding Chouteaus, who favored litigating to the end. Recognizing these hidden persons changes the incentives. These persons could exercise influence on whether the case settled.

Download the article from SSRN at the link.

Harry Potter's "Hermione" and Color-Blind Casting

Noah Berlatsky weighs in on the controversy over a black Hermione in the play "Harry Potter and the Cursed Child" here, for the Guardian. Says Mr. Berlatsky (in part):

If Hermione is black, then ... themes about racism become much more pointed. Hermione, remember, is the one person at Hogwarts who is horrified by the enslavement of the house elves. When she’s black, her sympathy inescapably becomes rooted in her racial identity – her knowledge of her own marginalised status, and of her own people’s history. Similarly, the racial epithets thrown her way by Draco Malfoy and others take on a greater weight and ugliness. When Malfoy calls her a “filthy little mudblood”, he’s referring to the fact that her parents are non-wizards, or muggles. But if Hermione is black, you have to read it also as a racial insult. If Hermione isn’t white, it can’t be coincidence that the “mud” in “mudblood” is brown.

More about color-blind casting here and about casting Hermione as black here.

Foucault, Law, and the Federal School Desegregation Cases

Gordon Hull, University of North Carolina, Charlotte, Department of Philosophy, has published Equitable Biopolitics: What Federal School Desegregation Cases Can Teach Us About Foucault, Law and Biopower. Here is the abstract.

The present paper looks at the intersection of juridical and biopower in the U.S. Supreme Court’s school desegregation cases. These cases generally deploy “equitable relief” as a relay between the juridicially-specified injury of segregation and the biopolitical mandates of integration. This strategy is evident in the line of cases running from Brown to Swann v. Mecklenburg, and has its antecedents in pre-war economic regulation. Later cases have attempted to close this relay, confining equality and rejecting claims of equitable relief. Study of the school desegregation cases thus both shows an example of the intersection of biopower and law (which has been difficult on Foucauldian grounds), as an example of the biopolitical race war that Foucault identifies in Society must be Defended.

Download the article from SSRN at the link.

Legal Narrative, Civil Rights, and the Constitution

Linda L. Berger, University of Nevada, Las Vegas School of Law, is publishing The Color-Blind Constitution: Choosing a Story to Live By in the Michigan State Law Review. Here is the abstract.

The two phrases most associated with the U.S. Supreme Court's decisions in Brown v. Board of Education have taken on Orwellian meanings. Like the "Patriot Act" and "family values," the original intention and meaning of the words have been obscured by the context and the history of their use. "The color-blind Constitution" is a rationale for rejecting attempts to integrate public schools. No one is able to proclaim without irony that an action will be taken "with all deliberate speed." In this article, these terms will be the vehicle for examining unanticipated consequences, particularly those associated with brief writing in the U.S. Supreme Court. My thesis is that some unanticipated consequences — for example, those associated with the Government's friend of the court briefs filed in Brown I and Brown II and eventually with the term all deliberate speed — are far more troublesome than others — in this case, those associated generally with the color-blind Constitution and specifically with the NAACP Legal Defense and Education Fund (NAACP) briefs filed on behalf of the school children in Brown and associated cases. The article's claim is that the real, qualitative difference between the arguments made in these briefs has affected the nature of their unanticipated consequences. To support the claim, I suggest and follow an approach that combines narrative, metaphor, and constitutional interpretation. Together, these may provide guidelines for "judging" the arguments made.

Download the article from SSRN at the link.

The Overlooked Diversity and Inclusion Argument In "Plessy v. Ferguson"

Sheldon Novick, Vermont Law School, is publishing Homer Plessy's Forgotten Plea for Inclusion: Seeing Color, Erasing Color-Lines in volume 118 of the West Virginia Law Review. Here is the abstract.

Despite the attention given to the Supreme Court’s opinions in *Plessy v. Fergusson* and frequent quotation of Justice Harlan’s dissenting opinion asking the Court to be color-blind, Homer Plessy’s actual claim and his plea are largely forgotten. This forgetfulness is unfortunate, because Homer Plessy speaks to our time with surprising urgency. Plessy did not ask for blindness to the reality of color, he asked the Supreme Court to accept the reality of race and to insist on the inclusion in civil society of every citizen, taking the reality of race and race-prejudice into account. In the 1890s, when Plessy’s suit was in preparation, the backlash against the first Reconstruction was thirty years old, and on the crest of success. Today, we are thirty years into the backlash against the Civil Rights jurisprudence of the Warren Court. The backlash of Homer Plessy’s day created the Jim Crow regime, drawing a color-line around the formerly enslaved with a pretense of equal treatment. Today, the New Jim Crow is accomplished through mass incarceration and mass deportation; the color-line is a wall, and the imprisoned are invisible. We say “Black lives matter” to bring that reality into view, and ask again to erase the line of exclusion. Homer Plessy argued not for equality merely, but for inclusion. “Diversity and inclusion” is a motto for today’s civil rights movement, and only changes in thought and language make it difficult for us to see that it could have been the motto of Homer Plessy’s movement as well. He insisted on an inclusive citizenship for persons of all races; diversity and inclusion. Constitutional law should not be blind to individual circumstances, but it should reject arbitrary color-lines that separate and exclude under a pretense of equal treatment.

Download the article from SSRN at the link.

"The Great Writ" and the American Revolution

Amanda L. Tyler, University of California, Berkeley, School of Law, is publishing Habeas Corpus and the American Revolution in volume 103 of the California Law Review (2015). Here is the abstract.

Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John Marshall declared that when the Founding generation constitutionalized “this great writ,” they invoked “[t]he term...in the [C]onstitution, as one which was well understood.” No matter how well the Founding generation understood the content, reach, and application of the “privilege of the writ of habeas corpus,” however, significant portions of the relevant historical backdrop to the ratification of the Suspension Clause remain lost to the annals of history. In particular, the details surrounding one of the most consequential periods in the history leading up to the adoption of the Suspension Clause — namely, the treatment and legal classification of the American colonists by the British during the American Revolutionary War — remain largely unexplored in legal scholarship. Professor Tyler seeks to recover and tell this story here by drawing upon a wealth of sources, including: archival documents, parliamentary debates, contemporary press accounts, colonial papers, diaries and private papers of key participants, and significant decisions and rulings of the British courts. As these materials reveal, determinations regarding the reach and application of the English Habeas Corpus Act of 1679, rather than solely the common law writ of habeas corpus, were of tremendous consequence during this important period in Anglo-American legal history. Where the Act was in force and where prisoners could claim its protections, the legal framework demanded that such persons be charged criminally and tried in due course or otherwise be discharged. Significantly, the privilege associated with the English Act did not speak merely to process; it further imposed significant substantive constraints on what causes would be deemed legal justification for detention in the first instance. The important role that the Act played in the Revolutionary War legal framework, moreover, suggests that modern jurisprudence has underappreciated the Act’s enormous influence upon the development of habeas law in the Anglo-American tradition. Finally, the history recovered here demonstrates more generally that during the Revolutionary War, suspension, geography, and allegiance each played significant roles in determining the availability of the privilege of the writ of habeas corpus to those who would claim its protections.

Download the article from SSRN at the link.

Magna Carta and the Proportionality Principle

Craig S. Lerner, George Mason University School of Law, is publishing Does the Magna Carta Embody a Proportionality Principle? in volume 25 of the George Mason University Civil Rights Journal (2015). Here is the abstract.

American scholars often argue that the Magna Carta embodies a “proportionality principle” mandating that the punishment fit the crime. This principle, according to a familiar narrative, found expression centuries later in the English Bill of Rights, which was reproduced another century later in the American Bill of Rights. Justices on the U.S. Supreme Court have claimed the authority of the Magna Carta when infusing the Eighth Amendment with a proportionality principle not immediately evident from its text.

This Essay explores and questions the narrative. The argument that the Magna Carta embodies a proportionality principle seizes upon three Chapters (20 to 22) that provide that a penalty not exceed “the degree of the offense.” Yet these sections exclusively concern the Norman practice of amercements — a penalty imposed for a litany of administrative offenses that were almost never of a criminal nature. Furthermore, given the prevalence of violent crime and the widespread acceptance of cruel punishment, it is implausible to project humanitarian motives onto the authors of Chapters 20 to 22. The Essay concludes with broader reflections on the uses made of the Magna Carta in this year, the 800th anniversary of its sealing. Like virtually every legal document in recorded history, the Magna Carta embodies at some level a proportionality principle. But as jurists purport to extract more meaningful and specific lessons from the Magna Carta on this and other points, their arguments lapse into poor scholarship and hopeless anachronism.

Download the article from SSRN at the link.

Changing Minds and the Civil Rights Act of 1964

Linda C. McClain, Boston University School of Law, has published The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways' as 95 Boston University Law Review 891 (2015). Here is the abstract.

Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”

Download the article from SSRN at the link.

The History of Civil Rights Policy In the United States

Mark Tushnet, Harvard Law School, has published Civil Rights Policy. Here is the abstract.

This essay offers an overview of US civil rights policy from the nineteenth century to the present. The expansion of the range of substantive interests covered by the term “civil rights” has been accompanied by an increasing emphasis on the connection between equality and civil rights. From the late nineteenth century through the first half of the twentieth, the term referred to racial equality with respect to whatever fit into the category, whether property rights, the right to vote, or social rights. Starting roughly in the middle of the twentieth century, “civil rights” began to be connected to other categories, such as gender, religion, sexual orientation, and by the twenty-first century quite a bit more. After examining the history of the idea and its implementation, the essay concludes with a discussion of contemporary controversies over disparate impact versus disparate treatment, affirmative action, and accommodation. 

Download the paper from SSRN at the link.