Stanford Law Review
originalism, legal history, authority, constitutional law
Civil Rights and Discrimination | Constitutional Law | Law
With some exceptions, the major project of civil rights litigators today is not forward movement but the work of preserving as much as possible the gains of the 1960s against legal and political battering.29 Meanwhile, and ironically, the rise of conservative progress metanarratives reflects the achievement of both liberal and radical scholars of forcing into mainstream discourse greater recognition of the evils of slavery and Jim Crow. Respectable conservatives now join in denouncing the most flagrant forms of racial terror running through the American past (pace certain allies of the Trump Administration). But doing so places them in a bind, for they also generally reject arguments that today's distribution of material blessings and life chances derives from past racial injustice in ways the law is bound or even permitted to worry about. To shimmy out of this bind, at least in the narrow realm of civil rights litigation, conservatives appeal not to their otherwise beloved past but instead to their own variation on twentieth century liberals' faith in the future.
Debating the Past's Authority in Alabama, 70 Stanford Law Review. 1645
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