Free and Equal Citizenship
Civil rights are those rights that constitute free and equal citizenship in a liberal democracy. Such citizenship has two main dimensions, both tied to the idea of autonomy. Accordingly, civil rights are essentially connected to securing the autonomy of the citizen.
Public and Private Autonomy
To be a free and equal citizen is, in part, to have those legal guarantees that are essential to fully adequate participation in public discussion and decisionmaking. A citizen has a right to an equal voice and an equal vote. In addition, she has the rights needed to protect her “moral independence,” that is, her ability to decide for herself what gives meaning and value to her life and to take responsibility for living in conformity with her values.(Dworkin, 1995: 25) Accordingly, equal citizenship has two main dimensions: “public autonomy,” i.e., the individual's freedom to participate in the formation of public opinion and society's collective decisions; and “private autonomy,” i.e., the individual's freedom to decide what way of life is most worth pursuing. (Habermas: 1996) The importance of these two dimensions of citizenship stem from what Rawls calls the “two moral powers” of personhood: the capacity for a sense of justice and the capacity for a conception of the good.(1995: 164; 2001: 18) A person stands as an equal citizen when society and its political system give equal and due weight to the interest each citizen has in the development and exercise of those capacities.
The idea of equal citizenship can be traced back to Aristotle's political philosophy and his claim that true citizens take turns ruling and being ruled. (Politics: 1252a16) In modern society, the idea has been transformed, in part by the development of representative government and its system of elections. (Manin: 1997) For modern liberal thought, by contrast, citizenship, is no longer a matter of having a direct and equal share in governance, but rather consists in a legal status that confers a certain package of rights that guarantee to an individual a voice, a vote, and a zone of private autonomy. The other crucial differences between modern liberalism and earlier political theories concern the range of human beings who are regarded as having the capacity for citizenship and the scope of private autonomy to which each citizen is entitled as a matter of basic right. Modern liberal theory is more expansive on both counts than its ancient and medieval forerunners.
It is true that racist and sexist assumptions plagued liberal theory well into the twentieth-century. However, two crucial liberal ideas have made possible an internal critique of racism, sexism, and other illegitimate forms of hierarchy. The first is that society is constructed by humans, a product of human will, and not some preordained natural or God-given order. The second is that social arrangements need to be justified before the court of reason to each individual who lives under them and who is capable of reasoning. The conjunction of these ideas made possible an egalitarianism that was not available to ancient and medieval political thought, although this liberal egalitarianism emerged slowly out of the racist and sexist presuppositions that infused much liberal thinking until recent decades.
Many contemporary theorists have argued that taking liberal egalitarianism to its logical conclusion requires the liberal state to pursue a program of deliberately reconstructing informal social norms and cultural meanings. They contend that social stigma and denigration still operate powerfully to deny equal citizenship to groups such as blacks, women, and gays. Accordingly, Kernohan has argued that “the egalitarian liberal state should play an activist role in cultural reform.” (1998: xi), and Koppelman has taken a similar position: “the antidiscrimination project seeks to reconstruct social reality to eliminate or marginalize the shared meanings, practices and institutions that unjustifiably single out certain groups of citizens for stigma and disadvantage.”(1996: 8) This position is deeply at odds with at least some of the ideas that lie behind the advocacy of third-generation civil rights. Those rights ground claims of cultural survival, whether or not a culture's meanings, practices and institutions stigmatize and disadvantage the members of some ascriptively-defined group. The egalitarian proponents of cultural reconstruction can be understood as advocating a different kind of “third-generation” for the civil rights movement: one in which the state, having attacked legal, political and economic barriers to equal citizenship, now takes on cultural obstacles.
A cultural-reconstruction phase of the civil rights movement would run contrary to Kukathas's argument that it is too dangerous to license the state to intervene against cultures that engage in social tyranny.(2001) It also raises questions about whether state-supported cultural reconstruction would violate basic liberties, such as freedom of private association. The efforts of New Jersey to apply antidiscrimination law to the Boy Scouts, a group which discriminates against gays, illustrates the potential problems. The Supreme Court invalidated those efforts on grounds of free association. (Boys Scouts v. Dale) Nonetheless, it may be necessary to reconceive the scope and limits of some basic liberties if the principle of free and equal citizenship is followed through to its logical conclusions.
It is true that racist and sexist assumptions plagued liberal theory well into the twentieth-century. However, two crucial liberal ideas have made possible an internal critique of racism, sexism, and other illegitimate forms of hierarchy. The first is that society is constructed by humans, a product of human will, and not some preordained natural or God-given order. The second is that social arrangements need to be justified before the court of reason to each individual who lives under them and who is capable of reasoning. The conjunction of these ideas made possible an egalitarianism that was not available to ancient and medieval political thought, although this liberal egalitarianism emerged slowly out of the racist and sexist presuppositions that infused much liberal thinking until recent decades.
Many contemporary theorists have argued that taking liberal egalitarianism to its logical conclusion requires the liberal state to pursue a program of deliberately reconstructing informal social norms and cultural meanings. They contend that social stigma and denigration still operate powerfully to deny equal citizenship to groups such as blacks, women, and gays. Accordingly, Kernohan has argued that “the egalitarian liberal state should play an activist role in cultural reform.” (1998: xi), and Koppelman has taken a similar position: “the antidiscrimination project seeks to reconstruct social reality to eliminate or marginalize the shared meanings, practices and institutions that unjustifiably single out certain groups of citizens for stigma and disadvantage.”(1996: 8) This position is deeply at odds with at least some of the ideas that lie behind the advocacy of third-generation civil rights. Those rights ground claims of cultural survival, whether or not a culture's meanings, practices and institutions stigmatize and disadvantage the members of some ascriptively-defined group. The egalitarian proponents of cultural reconstruction can be understood as advocating a different kind of “third-generation” for the civil rights movement: one in which the state, having attacked legal, political and economic barriers to equal citizenship, now takes on cultural obstacles.
A cultural-reconstruction phase of the civil rights movement would run contrary to Kukathas's argument that it is too dangerous to license the state to intervene against cultures that engage in social tyranny.(2001) It also raises questions about whether state-supported cultural reconstruction would violate basic liberties, such as freedom of private association. The efforts of New Jersey to apply antidiscrimination law to the Boy Scouts, a group which discriminates against gays, illustrates the potential problems. The Supreme Court invalidated those efforts on grounds of free association. (Boys Scouts v. Dale) Nonetheless, it may be necessary to reconceive the scope and limits of some basic liberties if the principle of free and equal citizenship is followed through to its logical conclusions.
DiscriminationIn liberal democracies, civil rights claims are typically conceptualized in terms of the idea of discrimination. (Brest, 1976) Persons who make such claims assert that they are the victims of discrimination. In order to gain an understanding of current discussion and debate regarding civil rights, it is important to disentangle the various descriptive and normative senses of ‘discrimination’.
In one of its central descriptive senses, ‘discrimination’ means the differential treatment of persons, however justifiable or unjustifiable the treatment may be. In a distinct but still primarily descriptive sense, it means the disadvantageous (or, less commonly, the advantageous) treatment of some persons relative to others. This sense is not purely descriptive in that an evaluative judgment is involved in determining what counts as a disadvantage. But the sense is descriptive insofar as no evaluative judgment is made regarding the justifiability of the disadvantageous treatment.
In addition to its descriptive senses, there are two normative senses of ‘discrimination’. In the first, it means any differential treatment of the individual that is morally objectionable. In the second sense, ‘discrimination’ means the wrongful denial or abridgement of the civil rights of some persons in a context where others enjoy their full set of rights. The two normative senses are distinct because there can be morally objectionable forms of differential treatment that do not involve the wrongful denial or abridgement of civil rights. If I treat one waiter rudely and another nicely, because one is a New York Yankees fan and the other is a Boston Red Sox fan, then I have acted in a morally objectionable way but have not violated anyone's civil rights.
Discrimination that does deny civil rights is a double wrong against its victims. The denial of civil rights is by itself a wrong, whether or not others have such rights. When others do have such rights, the denial of civil rights to persons who are entitled to them involves the additional wrong of unjustified differential treatment. On the other hand, if everyone is denied his civil rights, then the idea of discrimination would be misapplied to the situation. A despot who oppresses everyone equally is not guilty of discrimination in any of its senses. In contrast, discrimination is a kind of wrong that is found in systems that are liberal democratic but imperfectly so: it is the characteristic injustice of liberal democracy.
The first civil rights law, enacted in 1866, embodied the idea of discrimination as wrongful denial of civil rights to some while others enjoyed their full set of rights. It declared that “all persons” in the United States were to have “the same right…to make and enforce contracts…and to the full and equal benefit of all laws…as is enjoyed by white citizens.” (42 U.S.C.A. 1981). The premise was that whites enjoyed a fully adequate scheme of civil rights and that everyone else who was entitled to citizenship was to be legally guaranteed that same set of rights.
It is a notable feature of civil rights law that its prohibitions do not protect only citizens. Any person within a given jurisdiction, citizen or not, can claim the protection of the law, at least within certain limits. Thus, noncitizens are protected by fair housing and equal employment statutes, among other antidiscrimination laws. Noncitizens can also claim the legal protections of due process if charged with a crime. Even illegal aliens have limited due process rights if they are within the legal jurisdiction of the country. On the other hand, noncitizens cannot claim under U.S. law that the denial of political rights amounts to wrongful discrimination. Noncitizens can vote in local and regional elections in certain countries (Benhabib, 2006: 46), but the denial of equal political rights would seem to be central to the very status of noncitizen.
The application of much of civil rights law to noncitizens indicates that many of the rights in question are deeper than simply the rights that constitute citizenship. They are genuine human rights to which every person is entitled, whether she is in a location where she has a right to citizenship or not. And civil rights issues are, for that reason, regarded as broader in scope than issues regarding the treatment of citizens.
Given the principle of equal citizenship, discrimination in the sense of the denial of civil rights is an injustice that denies certain citizens the rights to which they are entitled. But it is not obvious that the principle entails that discrimination in the sense of differential treatment is unjust, even if the differential treatment disadvantages persons based on their race, sex, or another paradigmatic civil rights category. The common view is that such differential treatment is (at least prima facie) an injustice that violates the basic rights of the individual. In other words, the view is that it is a civil right to not be treated disadvantageously on account of one's race or sex.
An argument for the soundness of the common view cannot simply invoke existing laws that ban discrimination based on race, sex, and similar categories. The point of the common view is that the injustice of racial and gender discrimination explains why there ought to be those laws. What is required is an account that shows why such discrimination (staying with the two paradigm categories of race and sex for the sake of simplicity) is an injustice.
There are two main approaches to providing an account of the injustice of discrimination based on race and sex. The first is “individualistic” in that it seeks to explain the injustice in a way that abstracts from the broader social and political context in which the differential treatment occurs. The second is “systemic” in that it seeks to explain the injustice in a way that links the differential treatment to social patterns that reduce, or threaten to reduce, the members of certain groups to second-class citizenship.
Individualistic Accounts
Kahlenberg asserts the popular view that race discrimination is unjust because it treats a person on the basis of a characteristic that is immutable or beyond her control (1996: 54-55). But Boxill rejects such a view, arguing that there are many instances in which it is justifiable to treat persons based on features that are beyond their control. (1992: 12-17) Denying blind people a driver's license or persons with little athletic ability a place on the basketball team is not an injustice to such individuals. Moreover, Boxill notes that, if scientists developed a drug that could change a person's skin color, it would still be unjust to discriminate against people because of their skin color. (16)
Flew argues that racism is unjust because it treats differently persons who “are in all relevant respects the same.” (1990: 63 — emphasis in original). The defining characteristics of a race “are strictly superficial and properly irrelevant to all, or almost all, questions of social status and employability.” (63-64) But if ‘relevant’ means ‘rationally related’, then it does not appear to be a requirement of justice that a person always treat others only on the basis of relevant characteristics.(cf. Gardner, 1998: 168) The idea that it is such a requirement rests on the false premise that all morally bad treatment is a violation of justice and rights. If I give a waiter a poor tip because he is not a fan of my favorite sports team, then I have behaved badly but have not violated the waiter's rights or committed an injustice against him. And it is unclear, on Flew's account, why giving a poor tip because of a waiter's race is any different than doing so because of his preferences in sports.
Often people will insist that the injustice of racial or sex discrimination stems from the connection between those forms of discrimination and the reliance on stereotypes. It is not just that race is irrelevant but that those who act on race-based grounds are using inaccurate stereotypes instead of treating a person “as an individual,” as the phrase goes. However, if “being treated as an individual” means that others must take into account all of the potentially relevant information about the person in their behavior toward her, then there is no plausibility to the claim that anyone has a right to such treatment. Life's scarcity of time and resources undermines the idea that there is such a right.
Moreover, in some cases, stereotypical beliefs reflect reliable generalizations about a group. The term ‘statistical discrimination’ refers to the use of such reliable generalizations. Consider the case of a pregnant job applicant: as a statistical matter, there is a higher antecedent likelihood that she will take more sick days than a nonpregnant applicant during the first year of employment. Yet, an employer who relies on statistical discrimination in excluding the pregnant applicant is acting illegally under the Pregnancy Discrimination Act. The act was passed because many people quite reasonably thought that it was unjust for a pregnant applicant to be treated in that way. But if the treatment is unjust, then one cannot explain why that is so by invoking the unreliability of the generalization on which the treatment is based.
Garcia (1996) provides an account of racial discrimination that loosens the link between it and injustice, but still preserves some connection. On his account, such discrimination against others expresses a character defect, viz., the failure to care enough, or in the right way, for their interests. Accordingly, such discrimination (and, by extension, sex discrimination and other forms as well) is a matter of what is “in the heart” of the racist individual: “racially focused ill-will or disregard (including disrespect).” (10) This echoes the claim made by Gunnar Myrdal in his classic work, An American Dilemma, that “the American Negro problem is a problem in the heart of Americans.”(1944: lxxi)
Garcia's account weakens the link between racial discrimination and injustice because not every act expressing racial ill-will or disregard will be an injustice. Garcia writes that racial discrimination against a person “will often offend against justice,” but he does not argue that it always so offends. (10) He points out that discrimination against a person based on race may amount to a failure of benevolence, rather than a violation of rights. For example, racial disregard may lead a person to refuse to contribute to a charity organization that works with inner-city youth. In such a case, the person has failed to show benevolence for morally discreditable reasons, and so has behaved badly. But no injustice has been committed.
On the other hand racial ill-will is often expressed in violations of the rights of persons: hate crimes that harm the property or person of an individual on account of race; efforts to prevent members of certain racial groups from voting; charging racial minorities higher prices for the same product than the prices charged to similarly situated whites; denying persons equality of opportunity in the job and housing markets on account of their race. Such actions would count as injustices, not simply failures of benevolence. Thus, Garcia's approach preserves some link between discrimination and injustice, but it is much more attenuated than the link posited by the popular view that disadvantageous treatment on the basis of race is ipso facto an injustice (at least prima facie) to the person so treated.
3.2.2 Systemic Accounts
Many thinkers reject the idea that the injustice of discrimination stems fundamentally from what is in the mind or heart of the individual. Crespi (1945) criticized Myrdal on the ground that the latter's individualistic understanding of racial discrimination entailed that “ethical exhortation” was the remedy for racial injustice. Crespi argued that what really needed remedy were the social and economic structures that advantage whites. More recently, Steinberg (1995) and Bonilla-Silva (1997), among others, have argued that racial discrimination should not be understood as a “moral problem,” i.e., as a problem with individual attitudes or actions, but rather as a problem of persistent structural inequality. And MacKinnon has made a parallel argument when it comes to sex discrimination. For example, she contends that pornography is “not a moral problem” but rather a political one, meaning that it does not pose a problem of the virtue and vice of individuals and their behavior but rather one concerning relations of power that subordinate women to men. (1987: 146)
On the systemic account of racial and sex discrimination, the injustice of discriminatory acts lies in their connection to broader patterns in society that reduce the members of certain groups to second-class citizenship, or worse. Considered in abstraction from these broader patterns, refusing employment to someone on account of her race might be morally objectionable insofar as it treated a person arbitrarily when some important interest of hers was at stake. But the objectionable treatment amounts to an injustice because such acts are not sporadic but rather systemic and add up to a system in which persons have their entire lives substantially diminished on account of their race or sex. And such a system is what violates the right to equality — the basic civil right. Individual acts of racial or gender discrimination do so only derivatively, by reinforcing the systemic violation.
There are different ways in which a systemic account can be elaborated. For example, in MacKinnon's (1987) account of sex discrimination, the system of gender inequality revolves around the sexual subordination of women. Butler (1990), Brown (1995) and other feminists provide accounts which do not share MacKinnon's focus on sexual subordination. On the matter of racial discrimination, Cox (1948) focuses on the ways in which racial conflict is rooted in class conflict, while Omi and Winant emphasize “the specificity of race as an autonomous field of social conflict, political organization, and cultural/ideological meaning.”(1994: 48).
In whatever way the details are elaborated, all systemic accounts rest on the premise that women, racial minorities, and other groups are second-class citizens (or very vulnerable to such a status) and that they are so because of their group membership. The advocates of systemic accounts typically represent their views as incompatible with individualistic ones. They do so by insisting that discrimination is “not a moral problem” of the individual's heart or mind, but one concerning group power relations and social patterns of disadvantage. But their insistence rests on a false dichotomy. Discrimination based on race, sex and other categories can be a problem of the individual's heart and mind, as well as an issue that concerns systemic patterns of disadvantage in society. As Wasserstrom (1977) pointed out, discrimination can operate at both the individual and systemic levels. It is not necessary to deny the existence of patterns of discriminatory treatment that reduce, or threaten to reduce, some persons to second-class citizenship in order to affirm that it is an injustice to deny a person a job because of her sex. And it is not necessary to deny that, apart from social patterns of disadvantage, the individual who is denied a job for such reasons has been treated in an unjust way, in order to affirm that there are such patterns that reduce some to second-class status.
3.3 Justifying Antidiscrimination Law
Antidiscrimination laws typically pick out certain categories such as race and sex for legal protection, define certain spheres such as employment and public accommodations in which discrimination based on the protected categories is prohibited, and establish special government agencies, such as the Equal Employment Opportunity Commission, to assist in the laws' enforcement. There are many questions that can be raised concerning the justifiability of such laws. Some of the central philosophical questions derive from the fact that the laws restrict freedom of association, including the liberty of employers to decide whom they will hire. Some have argued that the liberal commitment to free association requires the rejection of antidiscrimination laws, including those that ban employment discrimination such as the Civil Rights Act of 1964.(Epstein, 1992) Most liberals thinkers reject this view, but any liberal defense of antidiscrimination laws must cite considerations sufficiently strong to override the infringements on freedom of association that the laws involve.
There are two different approaches within liberal thought to the justification of antidiscrimination laws. Both approaches regard as very important the interests people have in the areas protected by the laws, such as employment and public accommodations. And both approaches agree that the disadvantageous treatment of a person in those areas on the basis of race, sex, and the other traditional civil rights categories is morally arbitrary. However, on the first approach, the key to the justification of antidiscrimination laws rests squarely on the fact that the conduct prohibited by the laws is morally arbitrary. In contrast, the second approach holds that it is not the morally arbitrary conduct as such that justifies the laws but rather the fact that conduct based on those categories has had systemic effects reducing the members of certain groups to second-class citizenship.(Karst, 1989) Thus, the difference between the two approaches tracks the distinction between the individualistic and systemic accounts of why discrimination is wrong. Although many legal theorists endorse the systemic approach to the justification of antidiscrimination law, the U.S. Supreme Court seems to have adopted the individualistic one. (Balkin, 2001)
Flew argues that racism is unjust because it treats differently persons who “are in all relevant respects the same.” (1990: 63 — emphasis in original). The defining characteristics of a race “are strictly superficial and properly irrelevant to all, or almost all, questions of social status and employability.” (63-64) But if ‘relevant’ means ‘rationally related’, then it does not appear to be a requirement of justice that a person always treat others only on the basis of relevant characteristics.(cf. Gardner, 1998: 168) The idea that it is such a requirement rests on the false premise that all morally bad treatment is a violation of justice and rights. If I give a waiter a poor tip because he is not a fan of my favorite sports team, then I have behaved badly but have not violated the waiter's rights or committed an injustice against him. And it is unclear, on Flew's account, why giving a poor tip because of a waiter's race is any different than doing so because of his preferences in sports.
Often people will insist that the injustice of racial or sex discrimination stems from the connection between those forms of discrimination and the reliance on stereotypes. It is not just that race is irrelevant but that those who act on race-based grounds are using inaccurate stereotypes instead of treating a person “as an individual,” as the phrase goes. However, if “being treated as an individual” means that others must take into account all of the potentially relevant information about the person in their behavior toward her, then there is no plausibility to the claim that anyone has a right to such treatment. Life's scarcity of time and resources undermines the idea that there is such a right.
Moreover, in some cases, stereotypical beliefs reflect reliable generalizations about a group. The term ‘statistical discrimination’ refers to the use of such reliable generalizations. Consider the case of a pregnant job applicant: as a statistical matter, there is a higher antecedent likelihood that she will take more sick days than a nonpregnant applicant during the first year of employment. Yet, an employer who relies on statistical discrimination in excluding the pregnant applicant is acting illegally under the Pregnancy Discrimination Act. The act was passed because many people quite reasonably thought that it was unjust for a pregnant applicant to be treated in that way. But if the treatment is unjust, then one cannot explain why that is so by invoking the unreliability of the generalization on which the treatment is based.
Garcia (1996) provides an account of racial discrimination that loosens the link between it and injustice, but still preserves some connection. On his account, such discrimination against others expresses a character defect, viz., the failure to care enough, or in the right way, for their interests. Accordingly, such discrimination (and, by extension, sex discrimination and other forms as well) is a matter of what is “in the heart” of the racist individual: “racially focused ill-will or disregard (including disrespect).” (10) This echoes the claim made by Gunnar Myrdal in his classic work, An American Dilemma, that “the American Negro problem is a problem in the heart of Americans.”(1944: lxxi)
Garcia's account weakens the link between racial discrimination and injustice because not every act expressing racial ill-will or disregard will be an injustice. Garcia writes that racial discrimination against a person “will often offend against justice,” but he does not argue that it always so offends. (10) He points out that discrimination against a person based on race may amount to a failure of benevolence, rather than a violation of rights. For example, racial disregard may lead a person to refuse to contribute to a charity organization that works with inner-city youth. In such a case, the person has failed to show benevolence for morally discreditable reasons, and so has behaved badly. But no injustice has been committed.
On the other hand racial ill-will is often expressed in violations of the rights of persons: hate crimes that harm the property or person of an individual on account of race; efforts to prevent members of certain racial groups from voting; charging racial minorities higher prices for the same product than the prices charged to similarly situated whites; denying persons equality of opportunity in the job and housing markets on account of their race. Such actions would count as injustices, not simply failures of benevolence. Thus, Garcia's approach preserves some link between discrimination and injustice, but it is much more attenuated than the link posited by the popular view that disadvantageous treatment on the basis of race is ipso facto an injustice (at least prima facie) to the person so treated.
3.2.2 Systemic Accounts
Many thinkers reject the idea that the injustice of discrimination stems fundamentally from what is in the mind or heart of the individual. Crespi (1945) criticized Myrdal on the ground that the latter's individualistic understanding of racial discrimination entailed that “ethical exhortation” was the remedy for racial injustice. Crespi argued that what really needed remedy were the social and economic structures that advantage whites. More recently, Steinberg (1995) and Bonilla-Silva (1997), among others, have argued that racial discrimination should not be understood as a “moral problem,” i.e., as a problem with individual attitudes or actions, but rather as a problem of persistent structural inequality. And MacKinnon has made a parallel argument when it comes to sex discrimination. For example, she contends that pornography is “not a moral problem” but rather a political one, meaning that it does not pose a problem of the virtue and vice of individuals and their behavior but rather one concerning relations of power that subordinate women to men. (1987: 146)
On the systemic account of racial and sex discrimination, the injustice of discriminatory acts lies in their connection to broader patterns in society that reduce the members of certain groups to second-class citizenship, or worse. Considered in abstraction from these broader patterns, refusing employment to someone on account of her race might be morally objectionable insofar as it treated a person arbitrarily when some important interest of hers was at stake. But the objectionable treatment amounts to an injustice because such acts are not sporadic but rather systemic and add up to a system in which persons have their entire lives substantially diminished on account of their race or sex. And such a system is what violates the right to equality — the basic civil right. Individual acts of racial or gender discrimination do so only derivatively, by reinforcing the systemic violation.
There are different ways in which a systemic account can be elaborated. For example, in MacKinnon's (1987) account of sex discrimination, the system of gender inequality revolves around the sexual subordination of women. Butler (1990), Brown (1995) and other feminists provide accounts which do not share MacKinnon's focus on sexual subordination. On the matter of racial discrimination, Cox (1948) focuses on the ways in which racial conflict is rooted in class conflict, while Omi and Winant emphasize “the specificity of race as an autonomous field of social conflict, political organization, and cultural/ideological meaning.”(1994: 48).
In whatever way the details are elaborated, all systemic accounts rest on the premise that women, racial minorities, and other groups are second-class citizens (or very vulnerable to such a status) and that they are so because of their group membership. The advocates of systemic accounts typically represent their views as incompatible with individualistic ones. They do so by insisting that discrimination is “not a moral problem” of the individual's heart or mind, but one concerning group power relations and social patterns of disadvantage. But their insistence rests on a false dichotomy. Discrimination based on race, sex and other categories can be a problem of the individual's heart and mind, as well as an issue that concerns systemic patterns of disadvantage in society. As Wasserstrom (1977) pointed out, discrimination can operate at both the individual and systemic levels. It is not necessary to deny the existence of patterns of discriminatory treatment that reduce, or threaten to reduce, some persons to second-class citizenship in order to affirm that it is an injustice to deny a person a job because of her sex. And it is not necessary to deny that, apart from social patterns of disadvantage, the individual who is denied a job for such reasons has been treated in an unjust way, in order to affirm that there are such patterns that reduce some to second-class status.
3.3 Justifying Antidiscrimination Law
Antidiscrimination laws typically pick out certain categories such as race and sex for legal protection, define certain spheres such as employment and public accommodations in which discrimination based on the protected categories is prohibited, and establish special government agencies, such as the Equal Employment Opportunity Commission, to assist in the laws' enforcement. There are many questions that can be raised concerning the justifiability of such laws. Some of the central philosophical questions derive from the fact that the laws restrict freedom of association, including the liberty of employers to decide whom they will hire. Some have argued that the liberal commitment to free association requires the rejection of antidiscrimination laws, including those that ban employment discrimination such as the Civil Rights Act of 1964.(Epstein, 1992) Most liberals thinkers reject this view, but any liberal defense of antidiscrimination laws must cite considerations sufficiently strong to override the infringements on freedom of association that the laws involve.
There are two different approaches within liberal thought to the justification of antidiscrimination laws. Both approaches regard as very important the interests people have in the areas protected by the laws, such as employment and public accommodations. And both approaches agree that the disadvantageous treatment of a person in those areas on the basis of race, sex, and the other traditional civil rights categories is morally arbitrary. However, on the first approach, the key to the justification of antidiscrimination laws rests squarely on the fact that the conduct prohibited by the laws is morally arbitrary. In contrast, the second approach holds that it is not the morally arbitrary conduct as such that justifies the laws but rather the fact that conduct based on those categories has had systemic effects reducing the members of certain groups to second-class citizenship.(Karst, 1989) Thus, the difference between the two approaches tracks the distinction between the individualistic and systemic accounts of why discrimination is wrong. Although many legal theorists endorse the systemic approach to the justification of antidiscrimination law, the U.S. Supreme Court seems to have adopted the individualistic one. (Balkin, 2001)
Many debates over civil rights issues turn on assumptions about the scope and effects of existing discrimination (i.e., objectionable disadvantageous treatment) against particular groups. For example, some thinkers hold that systemic discrimination based on race and gender is largely a thing of the past in contemporary liberal democracies (at least in economically advanced ones) and that the current situation allows persons to participate in society as free and equal citizens, regardless of race or gender (Thernstom and Thernstrom, 1997 ; Sommers, 1994) Many others reject that view, arguing that white skin privilege and patriarchy persist and operate to substantially and unjustifiably diminish the life-prospects of nonwhites and women .(Bobo, 1997; Smith 1993) These differences drive debates over affirmative action, race-conscious electoral districting, and pornography, among other issues.
Questions about the scope and effects of discrimination are largely but not entirely empirical in character. Such questions concern the degree to which participation in society as a free and equal citizen is hampered by one's race or sex. And addressing that concern presupposes some normative criteria for determining what is needed to possess the status of such a citizen.
Moreover, there are subtle aspects of discrimination that are not captured by thinking strictly in terms of categories such as race, sex, religion, sexual orientation, and so on. Piper analyzes “higher-order” forms of discrimination in which certain traits, such as speaking style, come to be arbitrarily disvalued on account of their association with a disvalued race or sex. (2001) Determining the presence and effects of such forms of discrimination in society at large would be a very complicated conceptual and empirical task. Additional complications stem from the fact that different categories of discrimination might intersect in ways that produce distinctive forms of unjust disadvantage. Thus, some thinkers have asserted that the intersection of race and sex creates a form of discrimination against black women which has not been adequately recognized or addressed by judges or liberal legal theorists. (Crenshaw, 1998) And other thinkers have begun to argue that our understanding of discrimination must be expanded beyond the white-black paradigm to include the distinctive ways in which Asian-Americans and other minority groups are subjected to discriminatory attitudes and treatment. (Wu, 2002)
Among the most careful empirical studies of discrimination have been those conducted by Ayers (2001). He found evidence of “pervasive discrimination” in several types of markets, including retail car sales, bail-bonding, and kidney-transplantation. Yet, his assessment is that “we still do not know the current ambit of race and gender discrimination in America.” (425)
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