Civil Rights
In contemporary political thought, the term ‘civil rights’ is indissolubly linked to the struggle for equality of American blacks during the 1950s and 60s. The aim of that struggle was to secure the status of equal citizenship in a liberal democratic state. Civil rights are the basic legal rights a person must possess in order to have such a status. They are the rights that constitute free and equal citizenship and include personal, political, and economic rights. No contemporary thinker of significance holds that such rights can be legitimately denied to a person on the basis of race, color, sex, religion, national origin, or disability. Antidiscrimination principles are thus a common ground in contemporary political discussion. However, there is much disagreement in the scholarly literature over the basis and scope of these principles and the ways in which they ought to be implemented in law and policy. In addition, debate exists over the legitimacy of including sexual orientation among the other categories traditionally protected by civil rights law, and there is an emerging literature examining issues of how best to understand discrimination based on disability.
In contemporary political thought, the term ‘civil rights’ is indissolubly linked to the struggle for equality of American blacks during the 1950s and 60s. The aim of that struggle was to secure the status of equal citizenship in a liberal democratic state. Civil rights are the basic legal rights a person must possess in order to have such a status. They are the rights that constitute free and equal citizenship and include personal, political, and economic rights. No contemporary thinker of significance holds that such rights can be legitimately denied to a person on the basis of race, color, sex, religion, national origin, or disability. Antidiscrimination principles are thus a common ground in contemporary political discussion. However, there is much disagreement in the scholarly literature over the basis and scope of these principles and the ways in which they ought to be implemented in law and policy. In addition, debate exists over the legitimacy of including sexual orientation among the other categories traditionally protected by civil rights law, and there is an emerging literature examining issues of how best to understand discrimination based on disability.
1. Rights
1.1 The Civil-Political Distinction
Until the middle of the 20th century, civil rights were usually distinguished from ‘political rights’. The former included the rights to own property, make and enforce contracts, receive due process of law, and worship one's religion. Civil rights also covered freedom of speech and the press.(Amar 1998: 216-17) But they did not include the right to hold public office, vote, or to testify in court. The latter were political rights, reserved to adult males.
The civil-political distinction was conceptually and morally unstable insofar as it was used to sort citizens into different categories. It was part of an ideology that classified women as citizens who were entitled to certain rights but not to the full panoply to which men were entitled. As that ideology broke down, the civil-political distinction began to unravel. The idea that a certain segment of the adult citizenry could legitimately possess one bundle of rights, while another segment would have to make do with an inferior bundle, became increasingly implausible. In the end, the civil-political distinction could not survive the cogency of the principle that all citizens of a liberal democracy were entitled, in Rawls's words, to “a fully adequate scheme of equal basic liberties.” (2001: 42)
It may be possible to retain the distinction strictly as one for sorting rights, rather than sorting citizens (Marshall, 1965; Waldron 1993). But it is difficult to give a convincing account of the principles by which the sorting is done. It seems neater and cleaner simply to think of civil rights as the general category of basic rights needed for free and equal citizenship. Yet, it remains a matter of contention which claims are properly conceived as belonging to the category of civil rights. (Wellman, 1999) Analysts have distinguished among “three generations” of civil rights claims and have argued over which claims ought to be treated as true matters of civil rights.
1.1 The Civil-Political Distinction
Until the middle of the 20th century, civil rights were usually distinguished from ‘political rights’. The former included the rights to own property, make and enforce contracts, receive due process of law, and worship one's religion. Civil rights also covered freedom of speech and the press.(Amar 1998: 216-17) But they did not include the right to hold public office, vote, or to testify in court. The latter were political rights, reserved to adult males.
The civil-political distinction was conceptually and morally unstable insofar as it was used to sort citizens into different categories. It was part of an ideology that classified women as citizens who were entitled to certain rights but not to the full panoply to which men were entitled. As that ideology broke down, the civil-political distinction began to unravel. The idea that a certain segment of the adult citizenry could legitimately possess one bundle of rights, while another segment would have to make do with an inferior bundle, became increasingly implausible. In the end, the civil-political distinction could not survive the cogency of the principle that all citizens of a liberal democracy were entitled, in Rawls's words, to “a fully adequate scheme of equal basic liberties.” (2001: 42)
It may be possible to retain the distinction strictly as one for sorting rights, rather than sorting citizens (Marshall, 1965; Waldron 1993). But it is difficult to give a convincing account of the principles by which the sorting is done. It seems neater and cleaner simply to think of civil rights as the general category of basic rights needed for free and equal citizenship. Yet, it remains a matter of contention which claims are properly conceived as belonging to the category of civil rights. (Wellman, 1999) Analysts have distinguished among “three generations” of civil rights claims and have argued over which claims ought to be treated as true matters of civil rights.
The claims for which the American civil rights movement initially fought belong to the first generation of civil rights claims. Those claims included the pre-20th century set of civil rights — such as the rights to receive due process and to make and enforce contracts — but covered political rights as well. However, many thinkers and activists argued that these first-generation claims were too narrow to define the scope of free and equal citizenship. They contended that such citizenship could be realized only by honoring an additional set of claims, including rights to food, shelter, medical care, and employment. This second generation of economic “welfare rights,” the argument went, helped to ensure that the political, economic, and legal rights belonging to the first generation could be made effective in protecting the vital interests of citizens and were not simply paper guarantees.
Yet, some scholars have argued that these second-generation rights should not be subsumed under the category of civil rights. Thus, Cranston writes, “The traditional ‘political and civil rights’ can…be readily secured by legislation. Since the rights are for the most part rights against government interference…the legislation needed had to do no more than restrain the executive's own arm. This is no longer the case when we turn to the ‘right to work’, the ‘right to social security’ and so forth.” (1967: 50-51)
However, Cranston fails to recognize that such first-generation rights as due process and the right to vote also require substantial government action and the investment of considerable public resources. Holmes and Sunstein (1999) have made the case that all of the first-generation civil rights require government to do more than simply “restrain the executive's own arm.” It seems problematic to think that a significant distinction can be drawn between first and second-generation rights on the ground that the former, but not the latter, simply require that government refrain from interfering with the actions of persons. Moreover, even if some viable distinction could be drawn along those lines, it would not follow that second-generation rights should be excluded from the category of civil rights. The reason is that the relevant standard for inclusion as a civil right is whether a claim is part of the package of rights constitutive of free and equal citizenship. There is no reason to think that only those claims that can be “readily secured by legislation” belong to that package. And the increasingly dominant view is that welfare rights are essential to adequately satisfying the conditions of free and equal citizenship. (Marshall 1965; Waldron 1993; Sunstein 2001)
In the United States, however, the law does not treat issues of economic well-being per se as civil rights matters. Only insofar as economic inequality or deprivation is linked to race, gender or some other traditional category of antidiscrimination law is it considered to be a question of civil rights. In legal terms, poverty is not a “suspect classification.” On the other hand, welfare rights are protected as a matter of constitutional principle in other democracies. 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 International Covenant on Economic, Social, and Cultural Rights provides that the state parties to the agreement “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”
A third generation of claims has received considerable attention in recent years, what may be broadly termed “rights of cultural membership.” These 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. There is some overlap with the first-generation rights, such as that of religious liberty, but rights of cultural membership are broader and more controversial.
Article 27 of the International Covenant on Civil and Political Rights declares that third-generation 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 that “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” In the United States, there is no analogous protection of language rights or multiculturalism, although constitutional doctrine does recognize native Indian tribes as “domestic dependent nations” with some attributes of political self-rule, such as sovereign immunity. (Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe)
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. (1989; 1994; 1995) He argues that “granting special representational rights, land claims, or language rights to a minority….can be seen as putting the various groups on a more equal footing, by reducing the extent to which the smaller group is vulnerable to the larger.” (1995: 36-37) Such special rights do not amount to “group rights,” in the sense of granting the group any power or priority over the individual. Rather, the rights “compensate for unequal circumstances which put the members of minority cultures at a systemic disadvantage in the cultural marketplace.” (1994: 25)
Waldron (1995) criticizes Kymlicka for exaggerating the importance for the individual of membership in her particular culture and for underestimating the mutability and interpenetration of cultures. Individual freedom requires some cultural context of choice, but it does not require the preservation of the particular context in which the individual finds herself. Liberal individuals must be free to evaluate their culture and to distance themselves from it.
Kukathas criticizes Kymlicka for implying that the liberal commitment to the protection of individual rights is insufficient to treat the interests of minorities with equal consideration. Kukathas contends that “we need to reassert the importance of individual liberty or individual rights and question the idea that cultural minorities have collective rights.” (1995: 230). But the system of uniform legal rules that he endorses would keep the state from intervening even when a minority culture inflicts significant harm on its more vulnerable members, e.g., when cultural norms strongly discourage females from seeking the same educational and career opportunities as males.
Barry (2001) 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.” (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) Barry's position reflects and elaborates Gitlin's earlier condemnation of views advocating distinctive rights for cultural and ethnic minorities. Gitlin condemned such views on the ground that they represent a “swerve from civil rights, emphasizing a universal condition and universalizable rights, to cultural separatism, emphasizing difference and distinct needs.” (1995: 153)
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. Taylor goes as far as to claim that cultural survival can sometimes trump 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.
However, it is unclear why intrinsic value should attach to cultural survival as such. Following John Dewey (1939), Kymlicka (1995) rightly emphasizes that liberty would have little or no value to the individual apart from the life-options and meaningful choices provided by culture. But both thinkers also reasonably contend that human interests are ultimately the interests of individual human beings. In light of that contention, it would seem that a culture that could not gain the uncoerced and undeceived adherence of enough individuals to survive would have no moral claim to its continuation. Legal restrictions on basic liberties that are designed to perpetuate a given culture have the cart before the horse: persons should have their basic liberties protected first, as those protections serve the most important human interests. Only when those interests are protected can we then say that a culture should survive, not because the culture is intrinsically valuable, but rather because it has the uncoerced adherence of a sufficient number of persons.
The treatment of blacks under slavery and Jim Crow presents a history of injustice and cultural annihilation that is similar in some respects to the treatment of Native Americans. However, civil rights principles played a very different role in the struggle of Native Americans against the injustices perpetrated against them by whites.
Civil rights principles demand inclusion of the individuals from a disadvantaged group in the major institutions of society on an equal basis with the individuals who are already treated as full citizens. The principles do not require that the disadvantaged group be given a right to govern its own affairs. A right of political self-determination, in contrast, demands that a group have the freedom to order its affairs at it sees fit and, to that extent, political self-determination has a separatist aspect, even something less than complete sovereignty is involved.
The pursuit of civil rights by American blacks overshadowed the pursuit of political self-determination. The fact that American blacks lacked any territory of their own on which they could rule themselves favored the civil rights strategy. Moreover, the civil war amendments, and the civil rights laws that accompanied them, were meant to incorporate black Americans into the body politic as free and equal citizens. Although this effort was defeated by Jim Crow, the principle of citizenship for blacks had been enshrined in law. And so, in their struggle to defeat Jim Crow, blacks could and did repeatedly demand that white Americans live up to their constitutional promise of equality.
In contrast, for Native Americans, the pursuit of political-self-determination, in the form of tribal sovereignty, overshadowed the pursuit of civil rights. Even after the coerced tribal removals and federal efforts to impose regimes of individual land ownership, tribes still retained some territorial basis on which a measure of self-rule was possible. Moreover, a line of Supreme Court decisions dating to the early 1800's held that Indian tribes possessed some — albeit very limited — inherent powers of sovereignty (Ex Parte Crow Dog). Accordingly, pursuit of political self-determination rather than civil-rights protections seemed, in the eyes of many Indians, to be the most reasonable strategy for counteracting white oppression.
During the civil rights movement of the 1950's and 60's, there was some tension between Native Americans and blacks due to their different attitudes toward self-determination and civil rights. Some Native Americans looked askance at the desire of blacks for inclusion and thought the desire hopelessly naïve (Deloria, 1988: 169-70). And activists emerged from the black power movement who had a similar view of the effort at racial inclusion and who called for a form of political self-determination. Such a call was part of a tradition of black nationalism that can still be found today in the United States. (Shelby, 2006, critiquing black nationalism) Nonetheless, in the United States, unlike civil rights principles, black nationalist principles have not become part of the law.
In 1968, Congress enacted an Indian Civil Rights Act (ICRA). The act extended the reach of certain individual constitutional rights against government to intratribal affairs. Tribal governments would for the first time be bound by constitutional principles concerning free speech, due process, cruel and unusual punishment, and equal protection, among others. Freedom of religion was omitted from the law as a result of the protests of the Pueblo, whose political arrangements were theocratic, but the law was a major incursion on tribal self-determination, nonetheless. (Norgren and Shattuck, 1993: 169).
A married pueblo woman brought suit in federal court, claiming that the tribe's marriage ordinances constituted sex discrimination against her and other women of the tribe, thus violating the ICRA. (Santa Clara Pueblo v. Martinez) The ordinances excluded from tribal membership the children of a Pueblo woman who married outside of the tribe, while the children of men who married outsider were counted as members. Martinez had initially sought relief in tribal forums, to no avail, before turning to the federal courts. The Supreme Court held that federal courts did not have jurisdiction to hear the case: the substantive provisions of the ICRA did apply to the Pueblo, but the inherent sovereign powers of the tribe meant that the tribal government had exclusive jurisdiction in the case. The ruling has been both questioned and defended by feminist legal scholars. (MacKinnon, 1987; Valencia-Weber 2004)
In contrast to the United States, the Canadian Indian Act provides that men and women are to be treated equally when it comes to the band membership of their children. (Johnston, 1995: 190). This law and the Santa Clara case raise the general issue of whether and when it is justifiable for a liberal state to impose liberal principles on illiberal (or not fully liberal) political communities that had been involuntary incorporated into the larger state. Addressing this issue, Kymlicka (1995) argues that "there is relatively little scope for legitimate coercive interference" because efforts to impose liberal principles tend to be counterproductive, provoking the charge that they amount to "paternalistic colonialism." Moreover, "liberal institutions can only really work if liberal beliefs have been internalized." Kymlicka concludes, then, that liberals on the outside of an illiberal culture should support the efforts of those insiders who seek reform but should generally stop short of coercively imposing liberal principles. (1995: 167). At the same time, Kymlicka acknowledges that there are cases in which a liberal state is clearly permitted to impose its laws, citing with approval the decision in a case that involved the application of Canadian law to a tribe that had kidnapped a member and forced him to undergo an initiation ceremony. (44)
Applying Kymlicka's general line of thinking might prove contentious in many cases. Consider Santa Clara. His arguments could be used to support the decision in that case: the exercise of jurisdiction might be deemed “paternalistic colonialism.” But one might argue, instead, that jurisdiction is needed to vindicate the basic liberal right of gender equality. However, it does seem that, if a wrong akin to kidnapping or worse is required before federal courts can legitimately step in, then the Santa Clara case falls short of meeting such a requirement. The argument might then shift to whether the requirement imposes an excessively high hurdle for the exercise of federal jurisdiction. Accordingly, Kymlicka's approach might not settle the disagreement over Santa Clara, but it does provide a very reasonable normative framework in terms of which liberal thought can address the difficult issues presented by the case and, more generally, by the problem of extending liberal principles to Native American tribes.
