## 1. Free and Equal Citizenship



Free and equal citizens in a modern society enjoy rights to both
public and private autonomy. Each citizen must have rights securing
their freedom to participate in the formation of public opinion and in
society's collective decisions (public autonomy), as well as
rights guaranteeing their freedom to decide what way of individual
life to pursue (private autonomy) (Habermas 1996). The importance of
these two dimensions of modern citizenship derives from what Rawls
calls "the two moral powers" of personhood: the capacity
to have and act from a sense of justice and the capacity to hold,
revise, and act from a conception of the good (1995: 164; 2001: 18).
Persons stand as free and equal citizens when their society and its
political system accord equal and due weight to the interest each one
has in the development and exercise of their own moral powers.



The idea of free and equal citizenship emerged over the course of
several centuries in Western societies that would become modern
representative democracies. The idea can be traced back to 17th
century English egalitarians and liberals, such as Lilburne (1649) and
Locke (1690/1952), and it received dramatic expression during the
French Revolution with its "Declaration of the Rights of Man and of
the Citizen" (1789) and the overthrow of the entrenched hierarchies
and absolutist rule of the ancien regime. But until well into
the 20th century, racist and sexist assumptions about which human
beings had the capacity to be fully contributing members of society
led to an unduly constricted view of who could legitimately claim the
rights of a free and equal citizen. Those assumptions have been
largely eliminated from philosophical discourse, although they persist
in some segments of society.


## 2. The Standard Idea



In contemporary public discourse, the term 'civil rights'
is typically used to refer to a range of rights narrower than the full
set of claims belonging to free and equal citizens. This usage
reflects the now standard idea of civil rights as the rights that
members of society have against discrimination on the basis of race,
sex, ethnicity, disability, sexual preference, and other
characteristics regarded as morally objectionable reasons for the
distribution of major social benefits and burdens. Discrimination, in
turn, is understood as encompassing those actions, policies and
practices that (wrongfully) disadvantage the members of certain
socially salient groups, on account of their group identity, relative
to other members of society (cf. Lippert- Rasmussen 2014). 



Christopher Schmidt argues that the standard idea is a 20th century
development, deviating from the concept of civil rights that prevailed
in the decades following the Civil War. He notes that the earlier
concept referred to "the right to contract, own property, sue, testify
in court, and the right to physical security," all of which were
regarded as "fundamental to citizenship" (2021: 30 and 52). But
"[w]hen civil rights was [sic] reborn in the middle decades of the
twentieth century," a "novel" concept emerged that "centered on a
sweeping nondiscrimination principle rather than on a bounded
collection of fundamental rights" (135).



Robin West paints a similar historical picture, though her focus is on
legal doctrine rather than on the general public understanding. She
writes, "We don't have a civil right to much of anything, beyond
the right to nondiscrimination ... under our contemporary
conception of civil rights" (2019: 74). West explains how the U.S.
Supreme Court has been instrumental in the current dominance of this
idea of civil rights, but she also points to the role that mainstream
legal scholarship has played. By contrast with this current idea,
according to the "classical understanding" (29) held by 19th century
jurists, civil rights "were not simply rights 'not to be
discriminated against' on the basis of impermissible
characteristics," but also included "unambiguously rights *to*
something: . . . to protection and security, to enter and enforce
contracts, to own buy or sell property" and other categorical claims
essential to "membership in society" (149-50 and 157, emphasis in
original). As a progressive liberal who seeks to have legal doctrine
recognize substantive economic claims as rights of citizenship, West
aims to transcend the standard idea by subordinating it to an updated
version of the classical understanding.



Perhaps surprisingly, many radical activists calling for revolutionary
change have ignored any idea of civil rights broader than the standard
one. Accordingly, Angela Davis, who is among the most prominent of
those activists, explains that "the frame of civil rights"
is too small to understand the nature of the black freedom struggle in
America and beyond. The struggle "was not only a question of
acquiring the formal rights to fully participate in society, but
rather it was also about substantive rights - it was about jobs,
free education, free health care, affordable housing, and also about
ending the racist police occupation of Black communities" (2016:
72). So Davis follows the legal mainstream in declining to describe as
"civil rights" categorical claims to such goods as jobs, housing,
health care and trustworthy policing. 



West argues that the standard idea is inextricably connected to a
conceptual error. Consider the right to protection from private
violence, which West characterizes as "*the* irreducible,
minimal, and even quintessential civil right" (2019: 66; emphasis in
original). Each member of society has such a right, she contends, and,
if the government fails to secure it for everyone, then the civil
rights of all are violated, notwithstanding the fact that there would
be no discrimination involved in the failure (23). Accordingly, she
holds that it is a conceptual mistake to "conflate[ ] the idea of
nondiscrimination with the idea of civil rights" (18).



Additionally, West argues that the standard idea is tied to normative
errors, because it fails to affirm that members of society not only
have a right against being deprived of certain benefits for
discriminatory reasons; they also have a categorical right to those
benefits. The result is that, given the standard idea, civil rights
are rendered "hollow" and "formal," lacking
substantive content because they do not mandate outcomes in the
distribution of benefits but only require that processes of
distribution be free of discrimination (46 and 48).



For West, the normative deficiency of the standard idea is on display
in the Supreme Court's rulings regarding education and
employment. The court has ruled that there are constitutional rights
against being denied an educational or employment opportunity on
grounds of race or sex but has failed to recognize any categorical
constitutional right to education or employment (204-212). The court
has even failed to recognize a categorical civil right to police
protection. West regards those failures as reflections of the standard
idea and its radically truncated conception of "the duty the state
takes on, when we enter a social compact" (66).



However, the standard idea is not conceptually or normatively
deficient in the ways that West claims it to be. The idea is
consistently conjoined with the recognition that, beyond
antidiscrimination rights, free and equal citizenship requires rights
to police protection, education, and other benefits that modern
society can and should provide its members. If the Supreme Court is
wrong in failing to recognize such claims as among the basic rights of
citizens, then the problem is not with the standard idea but rather
with the court's impoverished understanding of free and equal
citizenship. 



Additionally, West's charge that the standard idea renders civil
rights "hollow" due to the merely "formal" character of
antidiscrimination rights appears to unduly minimize the normative
significance of claims against discrimination. Even though such claims
are, in a sense, "formal," claims that are formal can still be morally
important. Davis acknowledges this point, writing that civil rights
are "immensely important," even though she adds that "freedom is more
expansive than civil rights" (2016: 72). 



The normative significance of formal rights can be appreciated by
considering the right to vote in a free and fair election. There is no
guaranteed or predetermined outcome in such an election, and, to that
extent, the right to vote is formal: it is a right to be part of a
process, not a right to any particular outcome of the process. But the
franchise is not normatively "hollow"; rather, it is a right that has
helped persons in a modern society to protect themselves from serious
injustice (sec. 4 below).


## 3. Categories of Rights



Civil rights have often been understood by way of contrast with claims
said to belong to different categories of rights: political, social,
welfare and cultural, among others. Competing conceptions of civil
rights have drawn the contrasts in different ways and for different
purposes. To the extent that a particular contrast is used to express
a view that unduly limits the scope of claims belonging to free and
equal citizenship, the contrast is subject to critique and revision on
the basis of a suitably capacious idea of civil rights. Such critique
and revision were what led to the abandonment of the once widespread
view that political rights are not civil rights. And, in the judgment
of many, though not all, contemporary thinkers, welfare and cultural
rights, like political rights, are essential to the freedom and
equality of citizens and so ought to be counted as types of civil
rights rather than as rights of an altogether different kind.


### 3.1 Political and Social Rights



Until well into the 20th century, civil rights were sharply contrasted
with political and social rights. Civil rights encompassed the rights
to own property, enter into legally binding contracts, receive due
process of law, bring private lawsuits, testify in court, and worship
one's religion. They also covered freedom of speech and the
press (Amar 1998: 216-17). But they were traditionally conceived
as excluding the right to vote or to hold public office, which were
assigned to an entirely separate category, that of political rights,
and conferred by law only on (some) adult males. Social rights
concerned the domain of interactions deemed "private," which
encompassed not only personal relationships such as friendships but
transactions between businesses and their clientele.



The separation of civil from political and social rights was
traditionally invoked to limit the scope of citizenship rights so as
to keep the members of certain social groups, notably women, blacks,
and wage-workers, in their subordinate status. The claims of members
of those groups to the franchise were denied with the assertion that,
even though all citizens were entitled to civil rights, not all were
entitled to political rights. The franchise was said to be, not a
right, but rather a "privilege," properly conferred only on those who
were fit to exercise it in a way that would promote the good of
society (Keyssar: 38 and 177). And the claims of blacks to be served
by a business or to travel in a railroad car to which whites had
access were denied with the assertion that civil rights did not touch
upon social matters such as the decisions of persons and businesses to
associate with the members of one race but not another. Such decisions
were said to be analogous to a person's choice of friends or
dinner guests.



In the decades following the Civil War, the U.S. Supreme Court ruled
that, as a matter of constitutional law, political rights were not
among the rights held by all adult citizens and that Congress had no
authority to prohibit racial discrimination in access to the goods and
services of private firms that catered to the public. In *Minor v.
Happersett*, the Court invoked the civil-political distinction in
holding that, even though women were undoubtedly citizens, "the
Constitution, when it conferred citizenship, did not necessarily
confer the right of suffrage" (1874: 177). And in the *Civil Rights
Cases*, the Court struck down the Civil Rights Act of 1875,
writing that the Constitution did not confer upon Congress the power
"to adjust what may be called the social rights of men and races in
the community, but only to declare and vindicate those fundamental
rights which appertain to the essence of citizenship" (1883: 22).



Accordingly, the court used the civil-political-social distinction to
formulate its conception of citizenship, and its conception licensed a
hierarchical sorting of citizens by sex and race. The court's
rulings and reasoning reflected the dominant views of race and sex in
American society at the time and for decades thereafter. Those views
did not go unchallenged, however. Challenges were mounted by the women
in the suffrage movement and by blacks, who argued that access to the
ballot was needed for the effective enjoyment of the rights to
property, contract and the other traditional civil rights. 


### 3.2 Social and Welfare Rights



In an influential essay first published in 1950, the British
sociologist T.H. Marshall posited "an evolution of citizenship which
has been in continuous progress for some 250 years" (Marshall and
Bottomore 1987: 7). Marshall employed a tripartite distinction that
was, in some ways, similar to the traditional distinction found in the
opinions of the U.S. Supreme Court, but his purpose was very different
from any effort to hierarchically sort citizens into different
categories with differing sets of rights. He assumed that the rights
of citizenship should be the same for all, and his aim was to show
that the set of rights had been expanding over the centuries.



Marshall distinguished civil, political, and social rights, and he
argued that, over the course of several centuries, the idea of
citizenship had progressively expanded from encompassing only civil
rights to including political rights and then, during the
20th century, to incorporating social rights. His
distinction between civil and political rights tracked the line that
the U.S. Supreme Court had drawn during the 19th century
between rights to property, contract, due process etc., on the one
side, and the rights to vote and hold office, on the other. But what
he meant by the term 'social rights' was very different
from what the U.S. Supreme Court had in mind.



Marshall explained that 'social rights' referred to "the
whole range [of rights] from the right to a modicum of economic
welfare and security to the right to share to the full in the social
heritage and to live the life of a civilized being according to the
standards prevailing in the society" (8). Included were rights to "a
minimum supply of certain essential goods and services (such as
medical attention and supplies, shelter and education) or a minimum
money income available to be spent on essentials" (32).
Marshall's social rights were thus radically different from the
rights that the Supreme Court had invoked in the *Civil Rights
Cases*: the court's rights were the rights of persons to
associate with others who wanted to associate with them and to exclude
from their circle anyone whom they pleased, while Marshall's
were rights to a share of basic social goods access to which he
thought was essential to individual well-being, or welfare.
Accordingly, Marshall was suggesting that what came to be called
"welfare rights" were among the rights of free and equal citizens and
thus were "civil rights" in the broad sense. 



In many wealthy countries today, but not in the U.S., welfare rights
are protected as a matter of constitutional principle. For example,
Section 75 of the Danish Constitution provides that "any person unable
to support himself or his dependents shall, where no other person is
responsible for his or their maintenance, be entitled to receive
public assistance." And the German Federal Constitutional Court has
found that the country's Basic Law establishes a "Sozialstaat"
(reflecting Marshall's use of 'social') and secures
for every member of society an enforceable right to be provided by
government the "material prerequisites which are indispensable
for his or her physical existence and for a minimum of participation
in social, cultural and political life" (Egidy 2011: 1964).


### 3.3 Cultural Rights



Cultural rights include language rights for members of cultural
minorities and the rights of indigenous peoples to preserve their
cultural institutions and practices and to exercise some measure of
political autonomy. Article 27 of the International Covenant on Civil
and Political Rights declares that such rights ought to be protected:
"In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy
their own culture, to profess and practice their own religion, or to
use their own language." Similarly, the Canadian Charter of Rights and
Freedoms protects the language rights of minorities, and section 27
provides, "This Charter shall be interpreted in a manner consistent
with the preservation and enhancement of the multicultural heritage of
Canadians." In the United States, the Voting Rights Act protects the
speakers of certain minority languages (52 U.S.C. SS10303), and
constitutional doctrine recognizes native Indian tribes as having some
rights of political self-rule.



There is substantial philosophical controversy over the legitimacy and
scope of rights of cultural membership. Kymlicka has argued that the
liberal commitment to protect the equal rights of individuals requires
society to protect such rights, suitably defined (1989; 1994; 1995).
He distinguishes among three sorts of rights that have been claimed by
various groups whose culture differs from the dominant culture of a
country: (1) rights of self-government, involving a claim to a degree
of political autonomy to be exercised through the minority
culture's own institutions, (2) polyethnic rights, involving
special claims by members of the minority culture to facilitate their
integration into mainstream institutions and practices, and (3)
representational rights, involving a special claim of the minority
culture to have its members serve in legislatures and other political
bodies of the broader society (1995: 27-33). 



Kymlicka argues that these three sorts of group rights can, in
principle, be justified for those populations that he designates as
"national minorities," such as native Americans in the
United States and the Quebecois and Aboriginals in
Canada. A national minority is "an intergenerational community,
more or less institutionally complete, occupying a given territory or
homeland, [and] sharing a distinct language and history" (18).
Kymlicka contends that "granting special representational
rights, land claims, or language rights to a [national] minority
... can be seen as putting ... [it] on a more equal footing
[with the majority], by reducing the extent to which the smaller group
is vulnerable to the larger" (36-37). Such special rights
do not involve granting to the national minority the authority to take
away any of the civil rights of its members. Rather, the rights are
"external protections," providing the group with powers and
immunities with which it can protect its culture against the
potentially harmful decisions of the broader society (35).



According to Kymlicka, in contrast to national minorities (and
refugees), most immigrants have left their original cultures
voluntarily and so are entitled only to a much more limited set of
group rights. These "polyethnic rights" are claims to have
certain adjustments or accommodations made in the prevailing laws and
regulations so as to give individuals access to the social mainstream.
Thus, Kymlicka thinks that Orthodox Jews in the U.S. Armed Forces
should have the legal right to wear a yarmulke while on duty and
Canadian Sikhs have a legitimate claim to be exempt from motorcycle
helmet laws (31).



Kymlicka's distinction between national minorities and
immigrants has been criticized by Choudhry, who writes that "in
the majority of cases the decision to immigrate is not free"
(2002: 64) due to entrenched features of the global economy and other
factors beyond the control of immigrants. But Patten defends a
qualified form of Kymlicka's distinction, arguing that, in light
of the benefits received by immigrants and a moral prerogative that
states enjoy to pursue their own national projects, "a modest
prioritizing of the claims of national minorities over those of
immigrants is reasonable and permissible" (2014: 295-96).



However, Patten holds that Kymlicka's approach is deficient when
it comes to cultural minorities -- including immigrants
--who are geographically-dispersed and lack institutions that
could serve as the basis for their collective self-government.
*Contra* Kymlicka, Patten argues that, as a matter of justice,
such persons have a right that their cultural practices enjoy a level
of recognition and accommodation from the state that is equal to what
the majority culture enjoys. This right derives from a liberal
state's "obligation to extend a fair opportunity for self-
determination to all its citizens," (29) an obligation entailing
that the state "has the responsibility to be neutral toward the
various conceptions of the good that are affirmed by its
citizens" (27). The appropriate form of neutrality (what Patten
calls "neutrality of treatment") is achieved when the
state provides comparable facilities, resources, and opportunities to
the members of cultural minority groups so that they are neither
disadvantaged nor advantaged, relative to those in the cultural
majority, when it comes to pursuing identity-related aspects of their
conceptions of the good. Patten explains identity-related features as
ones that are not simply preferences but help to define a
person's sense of who she is and hold a place of central
importance in a person's system of ends.



According to Patten, among the areas in which a state might be called
upon to extend special rights to cultural minorities are language,
holidays, and the arrangement of substate political divisions. For
example, neutrality of treatment might require the state to supply its
services, such as assistance with tax preparations or information
regarding health matters, in the languages of cultural minorities.
Although such accommodations would go well beyond what Kymlicka has
endorsed, Patten agrees with him that the underlying aim of cultural
rights is not to ensure the survival of a culture. As Patten puts it,
such rights "are not rights to cultural preservation"
(29). Once a framework of fair opportunity is established, whatever
cultural outcome that emerges is just, even if some cultures
"struggle or ... disappear altogether" (29).



Notwithstanding their differences, the positions of Patten and
Kymlicka occupy a middle ground between views that are largely
antagonistic to the idea of cultural rights and views that embrace
such rights on the ground that the survival of cultures has an
intrinsic importance, irreducible to the interests of individuals.
Barry takes the former, antagonistic view, while Taylor takes the
latter.



Barry asserts that "there are certain rights against oppression,
exploitation, and injury, to which every single human being is
entitled to lay claim, and ... appeals to cultural diversity and
pluralism under no circumstances trump the value of basic liberal
rights" (2001: 132-33). The legal system should protect
those rights by impartially imposing the same rules on all persons,
regardless of their cultural or religious membership. Barry allows for
a few exceptions, such as the accommodation of a Sikh boy whose turban
violated school dress regulations, but thinks that the conditions
under which such exceptions will be justified "are rarely
satisfied" (2001: 62).



At the other end of the spectrum, Taylor (1994) argues for a form of
communitarianism that attaches intrinsic importance to the survival of
cultures. In his view, differential treatment under the law for
certain practices is sometimes justifiable on the ground that such
treatment is important for keeping a culture alive. And Taylor
contends that cultural survival can sometimes override basic
individual rights, such as freedom of speech. Accordingly, he defends
legal restrictions on the use of English in Quebec, invoking the
survival of Quebec's French culture.


## 4. The Right to Vote



Conflict over who should have the right to vote has been a part of the
history of modern representative government ever since its emergence
in England during the 17th century. Because elections are
central to such systems of governance and the different groups that
make up society have competing political interests, the issue of which
segments of the population should have the franchise has long been
contested. Property and sex qualifications drastically limited the
franchise into the 20th century. Opposition to universal
manhood suffrage came from those claiming that men without sufficient
property lacked the independence of mind and the stake in the good of
the community needed for the responsible exercise of the franchise
(Keyssar 2000: 8-10). After industrialization produced a large class
of wage-workers, a common argument against universal suffrage was that
giving workers the right to vote would result in the establishment of
a disastrous socialist or communist regime. Opposition to
women's suffrage came from those who embraced the traditional
patriarchal idea that the inherent capacities of women suited them,
not for the public world of politics, but for the restricted private
domain of family life and the household (Keyssar 2000: 141). 



In the U.S., the right to vote for black men was achieved *de
jure* shortly after the Civil War, but throughout the South the
right was *de facto* denied until the Civil Rights Movement led
to the Voting Rights Act of 1965. However, efforts to deny blacks the
vote and to dilute their voting power survived the act (secs. 4.1
- 4.3 below).


### 4.1 The Disenfranchisement of Black Americans



The 15th Amendment of the U.S. Constitution was ratified in
1870, a landmark of the Reconstruction era in which radical
Republicans and their allies sought to ensure that America's
freedmen and their fellow blacks would be free and equal citizens. The
amendment prohibits the denial or abridgement of the right to vote on
account of race and authorizes Congress to enact "appropriate
legislation" to implement the prohibition. But it would take a
century after the amendment's ratification before blacks across
the South could register and vote free from widespread and overt
discrimination and a well-grounded fear of economic coercion and
retaliatory violence. Even during Reconstruction, when many blacks
could vote under the protection of federal troops occupying the South
at the time, there was routine discrimination and violence against
blacks seeking to exercise their constitutional right. 



The Supreme Court gave a tortured interpretation to federal
legislation that sought to protect black voting rights, declaring that
the legislation was not "appropriate" as a basis for the
prosecution of state officials who had flagrantly prevented blacks
from registering to vote (*U.S. v. Reese* 1875). And after a
backroom deal enabled Rutherford Hayes to win the contested
presidential election of 1876, his administration instructed federal
troops to end their efforts to protect the rights of blacks. With the
consequent demise of Reconstruction, the path was opened for Southern
whites to turn the 15th Amendment into a dead letter. 



Southern states proceeded to adopt literacy requirements and other
tests of a voter's knowledge, poll taxes, and a variety of other
measures that, applied in a discriminatory manner by local registrars
and combined with terrorist violence and economic coercion, succeeded
in disenfranchising the vast majority of blacks in the region. And
despite the open defiance of the 15th Amendment, in *Giles v.
Harris* (1903), the Supreme Court declared that the federal
judiciary was not the place to go for blacks who sought the abrogation
of the system of disenfranchisement. Justice Holmes wrote for the
court that "relief from a great political wrong, if done, as
alleged, by the people of a state and the state itself must be given
by them or by the legislative and political department of the
government of the United States" (488). But Holmes and every
other minimally-informed American at the time knew full well that
there was no realistic possibility that Southern states or Congress
would voluntarily act to protect the voting rights of blacks. 



It was clear to blacks that, without the franchise, they had no
prospect of securely enjoying their legal rights to property,
contract, due process and the other claims that had been traditionally
regarded as the fundamental rights of free and equal citizens. With no
political power, Southern blacks were exposed to ruthless exploitation
and oppression at the hands of whites, which was the reason why whites
undertook their disenfranchisement schemes in the first place. The
experience of Reconstruction had taught whites that the vote was a
power that blacks would use to secure their other legal rights. It was
no accident that one of the principal aims of the Civil Rights
Movement would be the enactment of effective federal legislation to
protect voting rights. 


### 4.2 The Voting Rights Act



Among the most effective and important pieces of legislation to come
out of the Civil Rights Movement was the Voting Rights Act of 1965
(VRA). The act effected a "quiet revolution" (Davidson and
Grofman 1994) in the political systems of southern states by greatly
reducing the legal power those states had traditionally enjoyed to
determine the rules by which their electoral systems operated. The
broad consensus among historians and political scientists is that the
VRA put an end to the massive disenfranchisement of southern blacks,
as black voter registration rates increased exponentially across
Southern states in just a few years after enactment (Wright 2013:
183). Additionally, studies have shown that, with the help of
persistent litigation based on the act, the number of black elected
officials, especially at the local level, increased substantially
(184). In his assessment of the effects of the VRA, Wright concludes
that "it is undeniable that local political participation [by
blacks] generated positive change in aspects important to [their]
communities and their members ... . [b]y ensuring that gains from
economic growth would be more broadly shared" than would
otherwise have been the case (184). Those gains included the provision
of basic public services that many black communities in the South had
been previously denied due to discrimination, services such as paved
roads, streetlights, fire stations, and sewage treatment
facilities.



The VRA took a series of unprecedented steps in shifting the power to
regulate elections from the states to the national government. The
traditional understanding had been that, under the Constitution,
states had the exclusive and final power to determine the rules by
which elections for state and local offices were held. The VRA
overturned that understanding, inserting federal power into the
sovereign domain of the states. 



Section 2 of the VRA contained a nationwide ban on any voting
qualification or procedure that denied or abridged a citizen's
right to vote on account of race or color. The act went on to provide
remedies to make the ban effective in jurisdictions that had been
particularly egregious in their violations of the 15th Amendment. The
remedies applied to jurisdictions that met two conditions (the
"coverage formula"): 1) as of November 1964, the
jurisdiction was using a literacy test or some similar device to
determine eligibility to register, and 2) the proportion of eligible
voters in the jurisdiction who were registered on that date, or who
had turned out to vote in the election that year, was below 50%. The
idea was that low overall registration or voting rates (under 50%) was
an objective indicator that a sizeable proportion of the eligible
voters were being denied access to the ballot for racially
discriminatory reasons. Measures authorized for use against
jurisdictions that met the coverage formula included the invalidation
of literacy tests, the appointment of federal examiners to replace
local registrars and to compile the voting rolls, and, under Section
5, the requirement to gain federal approval (typically from the
Attorney General) for any changes in rules governing elections
("the preclearance requirement"). Seven southern states
fell under the coverage formula. 



The constitutionality of the key provisions of the VRA was challenged
by the states that fell under the formula, but the Supreme Court
upheld the law in *South Carolina v. Katzenbach* (1966). The
act was then reauthorized several times with some alterations. The
alterations sought to strengthen protections against what were called
"second- generation" barriers to racial equality in the
electoral process. The first generation had included literacy tests
and the other devices that were applied in discriminatory fashion to
block blacks from registering. The second generation consisted of
various ways that the political power of registered minority voters
was diluted by electoral arrangements. 



Consider the following example of vote dilution. In many counties in
the South, whites were in the overall majority but blacks were a
majority in certain parts of the county. The counties had been
traditionally divided into districts, with each district electing a
member of the county board. First-generation discrimination ensured
all-white boards by blocking black registration in majority-black
districts. When first-generation devices were invalidated as a result
of the VRA, many southern counties switched from a district-based
system to at-large voting, so that the white majority in the county as
a whole could continue to elect an all-white board. The Supreme Court
held that such changes were subject to a preclearance review by
federal authorities, who were empowered to prohibit the changes
(*Allen v. State Board of Elections* 1969). And treating
dilution as a form of racial discrimination, in 1982, Congress amended
section 2 to prohibit any electoral rule or arrangement that
"results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color ... .
[or being] a member of a language minority group" (52 U.S.C.
10301 and 10303).



For more than four decades, the preclearance requirement of section 5
and litigation based on section 2 were used to stop racial vote
dilution and a range of other electoral arrangements that were deemed
racially discriminatory. Then the Supreme Court upended preclearance
in its ruling in *Shelby County v. Holder* (2013). 


### 4.3 The *Shelby* Case and Its Aftermath



In *Shelby County,* the Supreme Court struck down the coverage
formula of the VRA, thereby rendering impotent Section 5's
preclearance provision: with no coverage formula, no jurisdictions
could be picked out as ones needing to receive federal approval for
changing their electoral rules. The formula had been last updated in
the early 1970's, and, writing for the court, Chief Justice
Roberts found that the use of the formula had become
"irrational" in light of the "dramatic [racial]
progress" that had been made in the intervening decades (554 and
556). He pointed out that the jurisdictions covered by the formula had
rates of black voter registration and turnout as high, and in some
cases higher, than the rates for whites, and that minorities had come
to hold office "at unprecedented levels" (547) in those
states.



Justice Roberts did not deny the existence of second-generation
barriers, but he argued that Congress had failed to reshape the
coverage formula to track the parts of the country in which such
barriers were most prevalent at present. Accordingly, he did not see a
rational relationship between the formula and any remaining obstacles
to racial discrimination in voting. Moreover, he contended that
Section 5 constituted a "dramatic departure from the principle
that all states enjoy equal sovereignty" (535). In light of such
a departure from a principle that he regarded as fundamental, Roberts
concluded that Congress lacked the constitutional power to impose the
old coverage formula.



In her dissent, Justice Ginsburg emphasized the evidential record that
Congress had compiled prior to its 2006 reauthorization of the law.
That record led Congress to the conclusion that the old coverage
formula was adequate to target those jurisdictions where
second-generation barriers were most prevalent. For example, the
record contained a study showing that covered areas were much more
likely to be successfully sued in Section 2 litigation than other
jurisdictions. Accordingly, Ginsburg judged that "Congress had
reasonably concluded that the coverage formula continues to identify
the jurisdictions of greatest concern" (578). She also construed
the "equal sovereignty" principle as applying only to the
very limited circumstance in which a new state was being admitted to
the union: the new state must not be accorded a lesser, or greater,
degree of sovereignty than the existing states.



Roberts is correct to see the VRA as a "dramatic
departure" (535) from the traditional legal view of the power of
the national government to regulate state elections. As Ackerman
stresses, the act was a radical piece of legislation, akin to a
constitutional amendment in the way that it overturned long-settled
legal understandings (2014). Nonetheless, Roberts's argument
that Congress must reshape the coverage formula is not convincing. On
the surface, it appears unreasonable for Congress to rely on an old
formula despite important changes in the situation of blacks. But the
fact that a situation has changed in some relevant respects does not
mean that it has changed in all such respects, and a closer look by
Congress determined that in one respect matters had not changed: the
same jurisdictions picked out by the old formula still had the most
problematic records in upholding the rights of blacks to an undiluted
vote. Roberts glosses over the fact that increases in registration
among blacks do not address the problem of racial vote dilution, and,
although he is correct that black officeholding rates have increased
considerably since 1970, it was reasonable for Congress to conclude
that the increase was due largely to vigorous federal enforcement
based on the old coverage formula.



In the wake of *Shelby*, states that had been subject to the
federal preclearance requirement (as well as a number of states that
had not been subject to it) have adopted laws and practices that make
voting more difficult than it had previously been and that
disproportionately disadvantage blacks, members of indigenous tribes,
and other racial minorities. These laws and practices include photo ID
and proof of citizenship requirements, restrictions on early voting
and mail-in ballots, and a reduction in the number of polling places.
The prevention of voter fraud is the main rationale offered for such
measures. However, litigation challenging the measures has been
mounted across the country. Where a discriminatory intent can be
shown, the measures are vulnerable to judicial invalidation (*NAACP
v. McCrory* 2016), but absent a "smoking gun" showing
such intent, the measures have been generally upheld (see, e.g.,
*Brnovich v. D.N.C*. 2021). Their critics have contended that
the measures violate section 2 of the VRA because their
disproportionate racial impact means that the measures "result[
] in ... [a]n abridgment of the right to vote" on account
of race (VRA: section 2; Commission on Civil Rights 2018; Herron and
Smith 2016). But legal and philosophical questions remain about how to
interpret the results-oriented language of section 2 and whether an
intent to discriminate should be seen as a necessary element of any
viable claim of racial discrimination in electoral arrangements
(Altman 1998). 


## 5. Criminal Justice and Racial Profiling



In recent years, the criminal justice system has become a focal point
in the discussion of civil rights in the United States. A number of
commentators have argued that the system amounts to a "new Jim
Crow," reducing blacks to an inferior, caste-like status
(Alexander 2012; for criticism of the Jim Crow analogy, see Forman
2012). Yet, even apart from such arguments, civil rights concerns have
been raised about every dimension of criminal justice in the U.S.,
from the investigation and arrest of suspects to the imposition of the
death penalty. And issues of racial equality with respect to criminal
justice are hardly limited to the U.S. (Clarke: 9-10). In France, for
example, race-based abuse perpetrated by the police is a matter of
serious public concern, and the office of Defender of Rights has found
that persons perceived as black or Arab are 20 times as likely to be
stopped by police as members of the general population (Bredeen and
Morenne 2017).



Among the most controversial tactics used by police in determining who
has committed a crime is racial (and ethnic) profiling. The tactic has
given rise to the charge that it violates the civil rights of those
whom it targets, and, in some cases, the courts have agreed with the
charge. In *State v. Soto*, for example, a New Jersey court
found that police traffic stops targeted blacks and amounted to a
"selective enforcement" (351) of the law and a violation
of the Equal Protection Clause of the 14th Amendment. Nonetheless,
debate continues over when, if ever, it is justifiable for police to
use race in deciding whom to stop and question.



Risse and Zeckhauser formulate a philosophically sophisticated defense
of racial profiling. They argue that, even in a racist society like
the United States, such profiling is justifiable under conditions
plausibly thought to exist in a range of cases. Their argument
combines utilitarian and deontological considerations: the utilitarian
strand regards profiling as contributing to the public good of crime
control, while the deontological line of argument aims to rebut claims
that profiling is objectionably discriminatory and unfair to persons
whom it harms.



Risse and Zeckhauser acknowledge that police abuse can be coupled with
profiling, but they insist that "abuse and profiling ...
*are different problems* that must be assessed
independently" (139; emphasis in original). Profiling is
"any police initiated-action that relies on the race, ethnicity,
or national origin and not merely on the behavior of an
individual" (136). Such action need not involve any abusive
police behavior, such as "rude words, demeaning demands,
physical force, or physical injury" (138). Abuse "must be
rectified independently" (139) of profiling.



Some critics of profiling contend that it is wholly ineffective as a
crime control measure. Risse and Zeckhauser point out that if this
contention is true, then there is no issue: profiling is unjustifiable
on that premise. But they reason that, even if some forms of profiling
make no net contribution to crime control, it seems unlikely that all
forms fit that description, given "a significant correlation
between membership in certain racial groups and the tendency to commit
certain crimes" (132).



Racial minorities feel aggrieved by profiling, and Risse and
Zeckhauser do not disregard that fact. However, they claim that the
grievance rests largely on "the underlying systematic
racism" (145) of society and that the harm done to minorities by
profiling is "small" (169) in comparison to the harm done
by that underlying racism. For example, African Americans would be
"only slightly" better off if profiling were eliminated,
"*keeping everything else fixed*" (149; emphasis in
original). "[T]he harm attached to profiling per se," they
explain, "is *expressive*" (146; emphasis in
original). Profiling is "a symbol of structural
disadvantage" (147) but "not the primary cause of ...
the sense of hurt among minorities" (149). In the utilitarian
calculus of Risse and Zeckhauser, the harms that count against the
benefits flowing from more effective crime control are
"comparatively modest" (149), viz., symbolic harms plus
the temporary inconveniences of being stopped and questioned by the
police. These modest harms are, in their view, likely to be outweighed
in a range of cases by the benefits.



Additionally, Risse and Zeckhauser argue that racial profiling per se
is not objectionably discriminatory, because it has neither "the
intention or the effect of maintaining or establishing an
*oppressive relationship*" between the races (153;
emphasis in original). When it does not involve abuse, profiling has
the intention of crime control, and, because profiling "is
itself parasitic on an underlying oppressive relationship" (154)
and does (mainly) symbolic harm, it "does not contribute to [an]
oppressive relationship" (155).



Critics of Risse and Zeckhauser argue that profiling is not only a
symbol of society's underlying racism but that it also
contributes materially to such racism and its harmful effects.
Eidelson argues that "the use of race as a proxy for criminality
is likely to be taken as validation for racist assumptions, and
thereby to nurture the very prejudices which contribute most directly
to [racially] oppressive relationships" (2015: 215). In a
similar vein, Lever contends that profiling "encourages us to
see black people as perpetrators" and that "racial
profiling exacerbates problems of police abuse" because such
profiling "conveys a message that black people are ...
dangerous" (2007: 24). And Hosein contends that blacks and
certain other groups, such as Muslims and persons of Middle Eastern
descent, "can reasonably assume that profiling
*contributes* to police abuse in so far as police officers
(even if mistakenly) take it to license harsh treatment of those
groups" (2018: e17; emphasis in original).



Hosein also argues, more fundamentally, that a policy of profiling
blacks and other groups gives the members of those groups good reason
to think that the government "substantially discounts [their]
rights and interests" relative to the rest of society and is
thereby consigning them to an "inferior political status"
(e5). In opposition to utilitarian defenses of profiling, he holds
that government has a duty of justice to avoid actions that make it
reasonable for members of the political community to believe that they
are being consigned to such a status: equal citizenship must be
secured by government, and all citizens must have sufficient grounds
for confidence that equality is secured for them. 



Mogensen contends that, *contra* Risse and Zeckhauser, racial
profiling is *pro tanto* and inherently wrong because it
disrespects a person's interest in being treated in a way that
reflects her merits as determined by personal features over which she
has control. He points out that other forms of differential treatment
based on statistical generalizations about unchosen features -
such as minimum age requirements for obtaining a driver's
license-- are also unfair for disrespecting that interest. But
Mogensen's central claim is that, unlike those other forms,
"racial profiling of black citizens [is] especially problematic
insofar as it is one of a number of injustices that together
constitute ... . a systematic pattern of injustice"
inflicted on blacks and through which they are subordinated to whites
(2019: 467). He notes that, on his account, racial profiling would be
seriously wrongful, even if it were kept secret from the public and
increased the efficiency of law enforcement. 



Reiman agrees with Risse and Zeckhauser that some forms of racial
profiling can make a significant contribution to overall safety, but
he also supports Lever's view that racial profiling in a racist
society is likely to exacerbate racism and increase the violation of
the rights of those victimized by it. While he holds that
"profiling is not intrinsically racist" (2011: 17), Reiman
argues that Risse and Zeckhauser have not set the bar sufficiently
high for profiling to be justified. He contends that, in light of its
likely exacerbation of existing racism, "racial profiling [must]
be used only for grave crimes and only where there is abundant
evidence of its likelihood of significantly increasing apprehension of
perpetrators of such crimes" (17). In a similar vein, Hosein
argues that profiling is justified only when the social benefits are
"compelling" and "there are no other means of
achieving the same benefits without creating similar injustice"
(2018: e16). For Reiman, Hosein and other critics, then, an adequate
appreciation of the connection of racial profiling to systemic
injustice compels the conclusion that, if profiling can be justified
at all, it is in a narrower range of circumstances that what the
Risse- Zeckhauser argument allows. 


## 6. Marriage Equality



Among the most highly contested civil rights issues of recent years
has been the question of whether marriage laws should be extended to
include same-sex couples. Over the past two decades, a number of
countries have liberalized their laws to enable such couples to become
married, despite the opposition of those who think that it is morally
or theologically unjustified to alter the traditional understanding of
marriage as the union of a man and a woman. The countries that
currently recognize same-sex marriages include the Netherlands,
Belgium, Canada, South Africa, Spain, Norway, Sweden, Mexico,
Portugal, Iceland, Argentina, Denmark, Brazil, France, England, New
Zealand, and the United States. In most of these countries, nationwide
same-sex marriage was brought about by legislation. But in the United
States, the Supreme Court ruling in *Obergefell v. Hodges*
(2015) extended same-sex marriage from ten states to all fifty.



Most scholars working in the areas of philosophy and legal theory
endorse a principle of equal treatment for same-sex and heterosexual
couples and argue that equal treatment requires that same-sex
marriages be legalized (Wardle 1996; Eskridge 1996; Balkin 2020).
However, there are dissenting voices in the literature, rejecting
marriage equality. These voices do not argue in favor the traditional
practice of criminalizing same-sex relations, although some contend
that such relations are "manifestly unworthy of the human being
and immoral" (Finnis 1996: 14). But they all argue that
extending marriage to same-sex couples flouts important values and
principles.



Many advocates of a right to same-sex marriage argue that abridging a
person's right to marry on the basis of sexual orientation is
objectionable for the same reasons that abridging that right on the
basis of race cannot be justified: both forms of restriction are
arbitrary deprivations of a fundamental civil right (Koh et al.:
18-19 and 42). However, such an argument proceeds too
quickly. In the eyes of opponents, the analogy between race and sexual
orientation is inapt: the considerations they invoke against same-sex
marriage, such as the interests of children or the distinctive nature
of heterosexual intercourse, do not apply to interracial
marriages. Accordingly, arguments about same-sex marriage must engage
with those considerations.



Finnis (1996), Lee (1997) and George (1997) make their case against
same-sex marriage by invoking natural law. However, unlike traditional
versions of natural law theory, their version does not rest on any
explicit theological or metaphysical claims. Rather, it invokes
independent principles of practical reasoning that articulate the
basic reasons for action. Such reasons are the fundamental goods that
action is capable of realizing and, for Finnis, Lee and George,
include "marriage, the conjuntio of man and woman" (Finnis
1996: 4). Homosexual conduct, masturbation, and all extra-marital sex
aim strictly at "individual gratification" and can be no
part of any "common good." Such actions "harm the
character" of those voluntarily choosing them (Lee and George,
1997: 135), and, in taking the actions, the individual becomes a slave
to his passions, allowing his reason to be overridden by his raw
desire for sensuous pleasure.



On Finnis's account, when consensual sexual conduct is private,
government may not outlaw it, but government "can rightly judge
that it has a compelling interest in denying that 'gay
lifestyles' are a valid and humanly acceptable choice and form
of life" (1996: 17). And for Finnis, Lee and George, equal
treatment of same-sex and heterosexual relations is out of the
question due to the morally defective character of same-sex
relations.



Macedo responds to Finnis by arguing that "all of the goods that
can be shared by sterile heterosexual couples can also be shared by
committed homosexual couples" (1996: 39). Macedo points out that
Finnis does not condemn sexual intercourse by sterile heterosexual
couples. But Finnis replies that there is a relevant difference
between homosexual couples and sterile heterosexual ones: the latter
but not the former are united "biologically" when they
have intercourse. Lee and George make essentially the same point: only
heterosexual couples can "truly become one body, one
organism" (1997: 150). But Macedo points out that, biologically,
it is not the man and woman who unite but the sperm and the egg (1996:
37). It can be added that the "biological unity" argument
seems to run contrary to Finnis's claim that his position
"does not seek to infer normative conclusions from non-normative
(natural-fact) premises" (1997: 16). More importantly, Macedo
and Koppelman make the key point that the human good realized in
intimate relations is a function of "mutual commitment and
stable engagement" (Macedo, 1996: 40) and that same-sex couples
can achieve "the precise kind of human good" that is
available to heterosexual ones (Koppelman, 1997: 1649). Accordingly,
equal treatment under the law for same-sex couples, including the
recognition of same-sex marriage, would remove unjustifiable obstacles
faced by those couples to the achievement of that human good.



Corvino explains one of the central human goods provided by marriage
in this way: marriage involves two individuals mutually and publicly
committing to be the "Number One Person" for the other in
sharing the benefits and alleviating the burdens that life brings
(Corvino and Gallagher: 15). Sterile heterosexual couples and those
unable to have sexual relations for physical reasons are rightly
permitted to marry to secure that good, and Corvino argues that
"once the state provides marriage as an option for different-sex
partners, even if they cannot or choose not to have children; ...
[and] even if they are incapable of coitus, ... but then denies
[marriage] to same-sex couples, it is treating citizens
unequally" (89-90).



Gallagher rejects Corvino's view, contending that "[t]he
critical public or 'civil' task of marriage is to regulate
sexual relationships between men and women in order to reduce the
likelihood that children ... will face the burdens of
fatherlessness, and increase the likelihood that there will be a next
generation that will be raised by their mothers and fathers in one
family, where both parents are committed to each other and to their
children" (Corvino and Gallagher: 96). She argues that
"gay marriage is a profound change to the meaning of the word
'marriage'... . [b]ecause] it disconnects marriage
from its grounding in the human reality that male-female sexual
relationships are different from other kinds of relationships"
(101).



However, Gallagher is not correct to claim that Corvino's view
rests on the premise that "a union of two men or two women is
just the same as a union of husband and wife" (132). The
question is whether the two sorts of union are relevantly similar with
respect to values that marriage serves. Corvino claims that, with
respect to at least one important value, viz., providing support for
couples who want to undertake a mutual and public commitment to be
each other's "Number One Person," there is no
relevant difference. Gallagher weakens her own view when she writes
that "gay marriage is wrong first and foremost not because of
its consequences but because it is a lie" (178), specifically,
the lie that same-sex couples "are like man and wife"
(177). Rather, in light of her emphasis on how marriage protects
children (109-115), it would make more sense for her to argue that
regulating sexual relations between men and women in the interest of
children is the most important social purpose of marriage and that
marriage equality threatens the capacity of marriage to serve that
function; she should not deny that marriage has other, socially
valuable functions.



Corvino affirms that marriage has an important child-protection
function, while rejecting the idea that it is the sole function (192).
His key disagreements with Gallagher are over the importance of those
other functions and whether there is adequate reason to think that
marriage equality threatens the child-protection function. Corvino
argues that denying same-sex couples access to the human goods that
marriage can provide to them is no small matter for those couples and
that Gallagher vastly underestimates what such access means to them
(198). Given how persistently and vigorously same-sex couples have
fought for marriage equality, it is difficult to disagree with Corvino
on the matter.



Citing studies suggesting that male same-sex couples have a relatively
weak commitment to sexual fidelity and are relatively unconcerned
about their partner having sex outside of the relationship, Gallagher
argues that same-sex marriage would dilute the commitment to fidelity
among heterosexual couples, thereby undermining an essential marital
norm. And, with the fidelity norm seriously weakened, heterosexual
marriages would become more unstable and the interests of children
would be harmed.



In Corvino's judgment, however, Gallagher's argument rests
on an "implausible empirical claim about same-sex couples'
power to topple majority norms" (195). Gay marriages would be
only a tiny fraction of all marriages, and gay marriages between men
who are indifferent to fidelity would be an even smaller fraction. One
could add to Corvino's criticism that, even if Gallagher's
claim is not implausible, it does seem to be little more than
speculation, and it is problematic to deny a civil right on such
speculative grounds to a portion of the adult population that has made
it clear that, *contra* Gallagher, the right is very important
to them. Gallagher might respond that the stakes for society are high,
claiming that the well-being of future generations hang in the
balance. But essentially the same claims have been made by defenders
of traditional marriage about every liberalization of the law of
marriage, from the dismantling of coverture (which had placed a
married woman almost entirely under the legal power of her husband) to
the present controversy over same-sex marriage.



Girgis, Anderson, and George argue that the defense of same-sex
marriage rests on a faulty understanding of marriage, what they call
"the revisionist view" (4). Such a view derives from the
sexual revolution of the 1960's and rejects the understanding
that had prevailed in almost every society until then, "the
conjugal view" (3).



On the conjugal view, marriage is a permanent commitment,
"ordered to procreation and family life" (7) and
constituting a "comprehensive union" of a man and a woman.
The union joins spouses "in body as well as in mind" and
is "sealed by sexual intercourse" (3). Such a union is
"a basic human good, a distinctive way of thriving" (35).
And "there is something special" about a marital
couple's sexual intercourse, because it constitutes the
"highest kind of bodily unity" (26), a unity not available
in any other relationship. In having intercourse, the marital partners
"do not merely touch or interlock" but unite in a way that
"has generative significance" and "physically
embodies their specific, marital commitment" (36). By contrast,
the revisionist view regards marriage as essentially a matter of
"emotional union and cohabitation" (8). Sex can enhance
the emotional connections but is not essential to the marital union,
and when the emotions cool, the partners might reasonably seek to end
the union.



Girgis et al. claim that the revisionist view warps our grasp of what
marriage is. They dismiss Corvino's idea that marriage is a
matter of having a "Number One Person," arguing that it
"cannot distinguish marriage from simple companionship"
(15). Nor can the revisionist view explain why the state should be
involved in regulating marriage or account for the central marital
norms of permanence and sexual exclusivity.



Corvino can respond that his defense of marriage equality does not
rest on the revisionist position, even though he does reject the
conjugal view. Rather, Corvino is suggesting a way of understanding
marriage that gives same-sex partners access to those substantial
goods of marriage that are not tied to heterosexual intercourse.
Security in a stable relationship that is publicly and legally
ratified as lasting and exclusive is among those goods. The liberty to
break off a relationship when emotions "cool" is no part
of Corvino's understanding of marriage. And although it is true
that companionship and friendship can provide a "Number One
Person," they cannot do so with the same level of assurance that
a legally ratified marriage can.



Girgis et al. might reject Corvino's view on the ground that it
rests on mere psychological considerations related to such matters as
how secure individuals feel and how likely they are to end a
relationship if it is sexually open, whereas their view rests on *a
priori* principles concerning objective human goods. However,
Corvino can respond that his understanding of marriage invokes human
goods that are no less objective than Girgis's
"comprehensive union." Additionally, Corvino might note
that, even assuming that heterosexual intercourse unites male and
female partners, his argument proceeds without recourse to such
contestable claims as the quasi-metaphysical thesis that such
intercourse between married partners is "the highest" form
of bodily unity and that other sorts of sexual activity are a
"mere" touching or interlocking of bodily parts.



Girgis et al. think that the conjugal account of marriage reflects its
true nature, but this position appears to have been rejected by most
democratic societies since the liberalization of marriage laws and
norms that began with nineteenth-century criticisms of the law of
coverture. Blackstone summarized the law as it had been through the
18th century: "By marriage, the husband and wife are one person
in law: that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is incorporated and
consolidated into that of the husband" (441). Over the course of
a century and more, coverture was limited and eventually eliminated in
favor of marriage equality between husband and wife, though
traditionalists repeatedly argued that such changes violated the
essence of marriage as "a union of person in husband and
wife" (441). Subsequent changes in the social understanding of
marriage were reflected in the rejection of the requirement of sexual
intercourse for the consummation of marriage and in the spread of
no-fault divorce laws. Given that such radical changes in the
understanding of marriage have already taken place and been inscribed
in law, it is unclear how law and society can now consistently or
justly exclude same-sex couples from forming a marital bond.


## 7. Disability



During the 1970s and 80s, persons with disabilities increasingly
argued that they were treated as second-class citizens by law and
society. They organized into a civil rights movement that pressed for
legislation that would help secure for them the status of free and
equal citizens. Protection against discrimination based on disability
was written into the
 Canadian Charter of Rights and Freedoms,
 The Charter of Fundamental Rights of the European Union, and the Convention on the Rights of Person with Disabilities. The disability rights movement in the U.S. culminated
with the passage of the
 Americans With Disabilities Act of 1990
 (ADA). The ADA has served as a model for legislation in countries
such as Australia, India and Israel



The disability rights movement began with the idea that discrimination
on the basis of disability was not different in any morally important
way from discrimination based on race. The aim of the movement was to
enshrine in law the same kind of antidiscrimination principle that
protected persons based on their race. But some theorists have
questioned how well the analogy holds. They point out that applying
the antidiscrimination norm to disability, for example, by installing
ramps for access to buildings or offering special education programs,
requires taking account of physical or mental differences among
people. This seems to be treatment based on a person's physical
or mental features, apparently the exact opposite of the ideal of
"colorblindness" behind the traditional antidiscrimination
principle.



Even race-based affirmative action does not really seem to be parallel
to antidiscrimination policies that take account of disability.
Advocates of affirmative action assert that the social ideal is for
persons not to be treated on the basis of their race or color at all.
Race-conscious policies are seen as instruments that will move society
toward that ideal (Wasserstrom: 2001).



In contrast, policies designed to counter discrimination based on
disability are not sensibly understood as temporary measures or steps
toward a goal in which people are not treated based on their
disabilities. The policies permanently enshrine the idea that in
designing buildings or buses or constructing some other aspect of our
physical-social environment, we must be responsive to the disabilities
people have in order for the disabled to have "fair equality of
opportunity" (Rawls 2001: 43-44; Hartley 2009). The need
for a permanent "accommodation" of persons with disabilities marks an
important difference in how the antidiscrimination norm should be
understood in the context of disability, as opposed to the context of
race. However, it is important to recognize that, at the level of
fundamental principle, the reasons why disability-based discrimination
is morally objectionable and even unjust are parallel to the reasons
why racial discrimination is so. At the individual level,
disadvantageous treatment of the disabled is often rooted in ill-will,
disregard, and moral arbitrariness. At the systemic level, such
treatment creates a social pattern of disadvantage that reduces the
disabled to second-class status. In those two respects, the grounds of
civil rights law are no different when it comes to the disabled.



Another way in which disability is thought to be different from race
concerns the special needs that the disabled often have that make life
more costly for them. These extra costs would exist even if the
socially-constructed physical environment were built to provide the
disabled with fair equality of opportunity and their basic civil and
political liberties were secured. In order to function effectively,
disabled persons may need to buy medications or therapies or other
forms of assistance that the able-bodied do not need for their
functioning. And there does not seem to be any parallel in matters of
race to the special needs of some of those who are disabled. The
driving idea of the Civil Rights Movement was that blacks did not have
any special needs: all they needed was to have the burdens of racism
lifted from them and, once that was accomplished, they would flourish
or fail like everyone else in society.



However, Silvers (1998) argues that the parallel between race and
disability still holds: all the disabled may claim from society as a
matter of justice is that they have fair equality of opportunity and
the same basic civil rights as everyone else. Any special needs that
the disabled may have do not provide the grounds of any legitimate
claims of justice. On the other hand, Kittay (2000) argues that the
special needs of the disabled are a matter of basic justice. She
focuses on the severely mentally disabled, for whom fair opportunity
in the labor market and political rights in the public sphere will
have no significance, and on the families that have the responsibility
of caring for the severely disabled. Pogge (2000) also questions
Silvers' view, suggesting that it is implausible to deny that
justice requires that society provide resources for meeting the needs
of the severely disabled. Still, it may be the case that some version
of Silvers' approach is justifiable when it comes to disabled
persons who have the capacity "to participate fully in the
political and civic institutions of the society and, more broadly, in
its public life" (Pogge, 2000: 45). In the case of such persons,
the basic civil right to equal citizenship would require that they
have the equal opportunity to participate in such institutions,
regardless of their disability. Although there may be some aspects of
the racial model that cannot be applied to persons with severe forms
of mental disability, the principles behind the American civil rights
struggles of the 1950s and 60s remain crucial normative resources for
understanding and combating forms of unjust discrimination that have
only more recently been addressed by philosophers and by society more
broadly.



Barnes focuses on the category of physical disability and argues that
the conditions fitting under the category are "strikingly
heterogenous" (2016: 9 and 46) and that there is no feature
common to the bodies of all (physically) disabled persons that makes
them disabled. On her account, disability is a socially-constructed
category that "people have found useful when organizing
themselves in a civil rights struggle" and "disability
*just is* whatever the disability rights movement is promoting
justice for" (43 - emphasis in original). Barnes adds that
the movement's judgments about which persons and conditions are
included under its umbrella are not arbitrary but rather
"rule-based" and implicitly treat the category of
disability as a "cluster-concept" to be applied to
physical conditions that have "some sufficient number of
features such as: being subject to social stigma and prejudice; being
viewed as unusual or atypical; making ordinary daily tasks difficult
or complicated; causing chronic pain; causing barriers to access
public places, ... requiring the use of mobility aids or
assistive technology [and] requiring medical care" (45). What
unifies the various conditions categorized as disabilities, in
Barnes's view, is that they "are *the kind of
thing* that the disability rights movement is trying to make the
world a better place to live with" (48 - emphasis in
original). To be clear, her view is not that the movement is
recognizing a "kind of thing" that would exist even in its
absence but that the movement creates the kind of thing we call
"disability." Accordingly, if we ask about each of the
conditions that fit under the category of physical disability,
'What does it have common with the other conditions in the
category?, then Barnes thinks that the most illuminating answer is
that the disability rights movement is fighting for the just treatment
of persons with that condition.



Nonetheless, it is difficult to see how Barnes's account can
adequately explain why some stigmatized features, such as blindness
and deafness, count as disabilities at the same time that others, such
as dark skin and being Jewish, are not disabilities. Under Jim Crow,
dark skin was stigmatized, atypical, made ordinary tasks (like getting
medical assistance or a bank loan) difficult, and caused barriers to
access public places (where "whites only" signs were found
at public parks, hospitals, bathrooms, and swimming pools). Yet, the
Civil Rights Movement was not, even implicitly, a matter of
eliminating disadvantage based on disability, notwithstanding
important parallels between race-based and disability-based
discrimination (Lim 2018: 983-84).


## Legal Cases and Statutes


* Allen v. State Board of Elections 89 S.Ct. 817 (1969).
* Americans With Disabilities Act. 42 U.S.C.
SSSS12101-12213 (1999).
* Brnovich v. D.N.C. 594 U.S. \_\_ (2021) available online.
* Civil Rights Act of 1866. 42 U.S.C SS1981 (1999).
* Civil Rights Act of 1964. 42 U.S.C. SSSS2000e et seq.
* Civil Rights Cases 109 U.S. 3 (1883) available online.
* Giles v. Harris 189 U.S. 475 (1903) available online.
* Minor v. Happersett. 88 U.S. 162 (1874) available online.
* NAACP v. McCrory 831 F3d 204 (4th Cir. 2016).
* Obergefell v. Hodges 576 U.S. 644 (2015) available online.
* Shelby County v. Holder 570 U.S. 529 (2013) available online.
* South Carolina v. Katzenbach 383 U.S. 301 (1966) available online.
* State v Soto 734 A.2d 350 (1996).
* U.S. v. Reese 92 U.S. 214 (1875) available online.
* Voting Rights Act 42 U.S.C. SSSS1973-1973aa-6.