Friday, February 28, 2014
The title of this post comes from this recent paper by Professor George Rutherglen linking the debates over the Civil Rights Act of 1866 to modern ones over affirmative action policies. Here's the abstract:
Disputes, disagreement, ambiguity, and ambivalence have marked the law of affirmative action since it came to prominence in the Civil Rights Era, nearly 50 years ago. These current controversies might be attributed to modern attitudes, and in particular, the need to delay enforcement of a strict colorblind conception of prohibitions against discrimination until the continuing effects of racial and ethnic discrimination have been eliminated. But a look at the origins of the civil rights law in Reconstruction belies this modernist perspective, which foreshortens debates to the aftermath of Brown v. Board of Education rather than rediscovering their origins in Reconstruction. This article attempts to rediscover those origins by re-examining the legislative history and immediate reception of the Civil Rights Act of 1866 as it bears upon race-conscious remedies for racial discrimination. The argument proceeds in three parts. The first concerns the 1866 Act itself and the congressional debates over it, which featured charges of special treatment despite the neutral terms of the act. The second compares the act to the legislation authorizing the Freedmen’s Bureau, where arguments of special treatment carried more force, so much so that the authorization for the bureau had to remain temporary and it lapsed well before Reconstruction ended. The third part briefly considers the implications of this comparison for modern civil rights law, and in particular, for constitutional arguments over affirmative action. No one-to-one correspondence exists between the legislative debates in 1866 and constitutional arguments today, but the debates then have left their traces now in concerns over special remedies for discrimination, and in particular, over how long they last.
CRL&P related posts:
- Title VII as Precedent: Past and Prologue for Future Legislation
- Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe
- AALS Scholarly Paper Award winner examines how sit-ins challenged role of courts
Friday, December 6, 2013
Democratic lawmaker urging Florida to allow online voter registration, same-day registration, and to create more early voting sites; and, Obama expects to see bipartisan improvents to voting access in 2014.
Florida State's Attorney won't press charges against officers facing civil rights lawsuit over harassment allegations.
Gun-rights advocates target the NFL over its policy against ads with guns; gun-control advocates release advertisement as citizens remember Newtown; and, Giffords launches gun-control PAC.
NYC's Fire Commissioner discusses with NPR attempts to close force's racial gap.
Monday, December 2, 2013
Think Progress says Texas's voter ID law could produce six-hour delays to vote.
Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.
Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.
NPR examines 'forgotten' issue of fair housing.
Albaquerque looks to reform its allegedly costly intiative process.
Next LA fire chief will have to deal with legacy of race and sex discrimination.
December 2, 2013 in Affirmative Action, Election Law, Fair Housing Act, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Speech, Right to Vote, Voter ID, Web/Tech | Permalink | Comments (0)
Thursday, November 14, 2013
Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.
Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.
Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.
Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.
Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.
ProPublica documents China's efforts to censor Twitter messages.
Tuesday, November 12, 2013
Fifth Circuit prepares to hear arguments over another University of Texas admissions policy that considers race.
Supreme Court could hear challenge to New Mexico Supreme Court's decision requiring a photography company to offer its services to gay couples.
WaPo's Cilizza details the places from which most of the country's campaign cash comes.
Cleveland tears down a school that was the focus of civil rights protests, a place where one protester died.
Angolan officials arrest five women on suspicion of being lesbians.