Universalism and Civil Rights (with Notes on Voting Rights after Shelby)

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign to eliminate the poll tax. Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; substantively, in aggressively attacking the structures that lead to inequality; and expressively, in emphasizing human commonality across groups. But they have possible drawbacks along all three of these dimensions as well. Although scholars have addressed some of these strengths and drawbacks in the context of specific proposals for civil rights universalism, no work has attempted to examine these issues comprehensively. This essay attempts such an examination. author. Professor of Law, University of Michigan Law School. Thanks to Rick Hasen, Sam Issacharoff, Ellen Katz, Rick Pildes, and, as always, Margo Schlanger, for comments on earlier drafts. universalism and civil rights