Three Civil Rights Fallacies

From the early 1950s until the present day, three propositions have permeated the arguments of lawyers and others interested in advancing the cause of civil rights. The first proposition is that the target of the civil rights movement is discrimination, which is always or usually a product of irrational hatred, fear, or prejudice. In this view, the purpose of civil rights law is to eliminate these forms of irrationality from the public and private realms. The second proposition is that the principal function of civil rights law is compensatory. Just as an injured person in a tort action has a right to be made whole, so victims of a history of discrimination (including slavery) are entitled to be put into the place they would have occupied if discrimination had never occurred. Restoration of the status quo ante is a substantial part of the reasoning and rhetoric of civil rights law. The third proposition is that the judiciary is the appropriate institution for the making and enforcement of civil rights law. Reliance on the courts, principally through interpretation of the Constitution, has been a distinctive feature of the civil rights movement since the middle of this century. In this essay, I argue that these three propositions, which are mutually reinforcing, are fallacies. They misconceive the nature of discrimination and offer prescriptions that are ill-adapted to its elimination. This was so even in the period in which they arose and helped to accomplish considerable good. But their fallacious character will be especially conspicuous in the last decade of the twentieth and the early decades of the twenty-first century. In this period, the consequences of the fallacies will probably be pernicious. I do not mean at all to deny that prejudice still plays a major role in many realms of social and economic life, that the history of discrimina-