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March 12, 2020|Age of Entitlement, Brown v. Board of Education, Christopher Caldwell, Civil Rights Act, Colorblind Constitution, Great Society, Green v. Kent New County, Griggs v. Duke Power, Parents Involved v. Seattle School District, Plessy v. Ferguson, Ronald Reagan

American Agonistes

by Richard M. Reinsch II|

Overhead view of the massive crowd assembled during the March on Washington for Jobs and Freedom, Washington DC, August 28, 1963. (Photo by Robert W. Kelley/The LIFE Picture Collection via Getty Images)
Caldwell's Age of Entitlement argues that the civil rights state is the anvil upon which our nation wages its incessant political contests.

October 8, 2019|Bostock v. Clayton County Georgia, Civil Rights Act, Harris Funeral Homes v. EEOC, Sexual Orientation, Title VII, Zarda v. Altitude Express

Sex, Sexual Orientation, and the Separation of Powers

by Thomas Ascik|

shutterstock.com
Three cases that deal with a powerful federal law pervasive in its influence pose the opportunity to the Court for the takeover of legislative power.

July 17, 2019|Civil Rights Act, Equality Act, Freedom of Religion, LGBTQ Rights, Masterpiece Cakeshop, Title VII

Is There “Equality” in the Equality Act?

by Suzanne Lucas|

Image by Yuriy Golub (shutterstock.com)
The Equality Act removes protections for people who have deeply held religious beliefs that conflict with homosexual behavior.

October 15, 2014|Administrative Law, Civil Rights Act, Grover Norquist, Office for Civil Rights

Tyranny on the Margin

by Michael S. Greve|

Crisis Management

I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.

The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.

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October 7, 2014|Civil Rights Act, Dear Colleague Letter, Department of Education, Office for Civil Rights, Title VI

Prescription for a Banana Republic

by Michael S. Greve|

dept of ed

This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.

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August 11, 2014|Administrative State, Civil Rights Act, Office for Civil Rights, Title IX

Rule by Edict: Shep Melnick on the Power of the Civil Rights State

by R. Shep Melnick|

This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was…

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June 17, 2014|

Race, Rights-Talk, and Equity

by R. Shep Melnick|

W. B Allen’s essay impresses upon us how different our understanding of civil rights is from that of the Founders and the authors of the Fourteenth Amendment. Back then “civil rights”referred to our most fundamental rights, those closely tied to and only slightly more expansive than our natural rights. Today most of us think of the right to vote as one of our most important civil rights, the one that protects all the others. But in 1870 Congress enacted the Fifteenth Amendment to protect this central political right, which was generally assumed not to be covered by the Fourteenth. Since the…

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June 11, 2014|

Restoring the Color-Blind Foundation of the 1964 Civil Rights Act

by Roger Clegg|

The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well. There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of…

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June 4, 2014|

Civil Rights, the Civil Rights Act, and Martin Luther King, Jr.

by Peter C. Myers|

The Civil Rights Act of 1964 is surely the most renowned piece of legislation enacted in 20th century America. It stands (with the Voting Rights Act passed the following year) as the culminating achievement of the Civil Rights movement, itself now enshrined in conventional opinion as the latest and greatest of America’s great awakenings. By that movement the nation was stirred at last to confront, in the matter of race, its most profound and chronic bedevilment. The moral authority now almost universally accorded the Civil Rights Act and the movement that inspired it has not foreclosed, perhaps indeed has intensified, controversy…

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June 2, 2014|

Our Civil Rights Rest on Fundamental Arguments, Not Racial Ones

by W. B. Allen|

Celebrations of the Civil Rights Act at 50 remind us just how anachronistic the common understanding of civil rights has become. They are treated as the product of a momentary movement in the latter portion of the 20th century or as a work of legislative artistry by President Lyndon Johnson. Today it seemingly suffices to name President Johnson and Dr. Martin Luther King, Jr. to say all that is necessary about civil rights. Ironically, the observations most associated with each of these men undermine their claims to be advocates of civil rights constitutionally understood. In Johnson’s case, the observation was…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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