West, "Toward a Jurisprudence of the Civil Rights Acts"

Robin L. West (Georgetown University Law Center ) has posted "Toward a Jurisprudence of the Civil Rights Acts." Here's the abstract:

What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding -– basically, that “civil rights” are “antidiscrimination rights” -– is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself.
First, on the general point: some of the “civil rights” sought or held across our history have not been antidiscrimination rights of any sort at all: labor rights, welfare rights, free speech rights, and the constitutional rights of criminal defendants have all, at various times, been championed as “civil rights,” and these rights are neither logically nor jurisprudentially tied to any conception of antidiscrimination. But furthermore, even the “civil rights” which are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion, simply our rights not to be discriminated against on the basis of impermissible characteristics. Rather, the “civil rights” of which we cannot be discriminatorily deprived, whether originating in the ‘64 Act or elsewhere, are, after all, rights to something: a right to vote, or to physical security, or to enter contracts, or to own, buy or sell property, or to legal recourse in the aftermath of a wrong committed against us, or to write a will, or to be considered for or to hold down a job and to be paid fairly for our labor, or to the use of a restaurant or a hotel or a city bus, or to a public education, or to marry whom we love. And, these are just some of the public goods that have been recognized at various times as “civil rights,” of which we cannot be deprived by discriminatory action.

Even if just that much is right, then the “civil right” protected by all of our Civil Rights Acts, including the ‘64 one, is considerably more complex, jurisprudentially, than the conventionally legalistic and formulaic equation of “civil rights” with “antidiscrimination rights” suggests. Minimally, the “civil right” recognized or protected by the various Civil Rights Acts is almost invariably a multilayered right, or a “right to a right”: it is a right to not be discriminatorily deprived of some underlying right. Only the first right in that phrase “a right to a right” is the antidiscrimination right. The second “right,” though, is the underlying civil right of which we cannot be discriminatorily deprived, and it is both itself complex, and highly variable: it might be a common law right, such as a right to enter contracts or sell property, or a statutory right, such as a right to vote, or simply a right to a social or public good, such as employment or educational opportunities, or the protection of a trustworthy police force against private violence. And, while we have generated a library of writing, and jurisprudence, and judicial opinions, on the nature of the first right in that phrase -– the right not to be deprived of various rights, on the basis of race, sex, and so forth -– we have devoted much less to the second: the nature of the underlying right of which we cannot be deprived. So, what is the jurisprudential nature of that right? What is a “civil right,” jurisprudentially, both with respect to the rights protected against discrimination by the Civil Rights Act of 1964, and more broadly? Again, and more generally, what is a “civil right”?

The full paper is available here, at SSRN.