Samuel R. Bagenstos (University of Michigan Law School) has posted Reconstructing the Civil Rights State After Democratic Backsliding (forthcoming in The ANNALS of the American Academy of Political and Social Science) on SSRN. Here is the abstract:
American civil rights law has always been tied to the project of building a multiracial democracy that guarantees full and equal membership in the community and an equal opportunity to flourish. Yet the enforcement regime that took shape after the 1960s pursued that goal through a narrow set of tools: It relied substantively on the Constitution and antidiscrimination principles, and procedurally on federal-court litigation and executive-branch enforcement. This essay argues that those limitations left the regime vulnerable—both to being neutered by increasingly conservative courts and to being weaponized by a hostile administration—while not doing enough to build durable political power for civil rights advocates. The second Trump Administration has exploited these vulnerabilities, gutting enforcement agencies and repurposing civil rights authority as a weapon against universities, law firms, and disfavored states.
Rebuilding after the current crisis, the essay contends, cannot mean restoring what came before. Instead, federal civil rights agencies should be reconceived with a broader mission: identifying practices that threaten civil rights values whether or not they violate existing law; coordinating the full range of federal enforcement and spending tools to address those practices; and building resilience against electoral reversal. Toward that end, the essay proposes investigative and reporting functions modeled on the Civil Rights Commission, interagency enforcement coordination, the use of discretionary grants as positive incentives (guarded against weaponization), the development of state and local enforcement capacity, and the strengthening of independent civil society and the plaintiffs’ bar as enduring sources of civil rights power.
Highly Recommended!
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