Toward an ‘Integrated’ Theory of Associative Right: The Role of Government Neutrality in Civil Rights Jurisprudence

84 Pages Posted: 6 Aug 2010 Last revised: 20 Dec 2010

See all articles by Hans Hacker

Hans Hacker

Arkansas State University - Department of Political Science

William Blake

University of Maryland, Baltimore County (UMBC) - Department of Political Science

Date Written: August 5, 2005

Abstract

This paper, published in the 2005 Berkeley Journal of African-American Law and Policy, explores a connection between the Lochner Era economic rights doctrine of government neutrality and the Court’s early civil rights jurisprudence. In the first half of this paper we describe the tension existing between economic associative and civil associative rights doctrine. The Court in Lochner v. New York prohibited state interference with private associative rights in the formation of contracts. However, beginning with Plessy v. Ferguson, the Court accepted public purpose justifications to allow states to regulate association among the races. Both Berea College v. Kentucky and Buchanan v. Warley presented the Court with countervailing claims couched in terms of both economic and civil associative rights, forcing the Court to reconcile these jurisprudential inconsistencies. In the second half, we explore how the Court resolved these doctrinal inconsistencies within the context of civil rights era litigation. First, it no longer accepted the public purpose justifications offered by the state in defense of segregation. Second, it did not abandon the doctrine of government neutrality after 1937, but changed its realm of application from economic associative rights to civil associative rights. While repudiated as a jurisprudential basis for reviewing government economic regulation, government neutrality provided the foundation for modern standards of due process and equal protection, beginning with Shelley v. Kraemer, Brown v. Board of Education, and Bolling v. Sharpe. The Court in these cases employs logic from the Lochner Era by framing the issues before it in terms of a substantive right deserving equitable and neutral government enforcement, similar to treatment of property rights in Buchanan. Because of this framework, the Court in Brown does not articulate a broad prohibition on racial classifications, but instead classifies education as a substantive right.

Keywords: Brown v. Board of Education, government neutrality, Lochner

Suggested Citation

Hacker, Hans and Blake, William, Toward an ‘Integrated’ Theory of Associative Right: The Role of Government Neutrality in Civil Rights Jurisprudence (August 5, 2005). U of Texas Law, Public Law Research Paper No. 179. Available at SSRN: https://ssrn.com/abstract=1654047 or http://dx.doi.org/10.2139/ssrn.1654047

Hans Hacker

Arkansas State University - Department of Political Science ( email )

Jonesboro, AR
United States

William Blake (Contact Author)

University of Maryland, Baltimore County (UMBC) - Department of Political Science ( email )

1000 Hilltop Circle
Baltimore, MD 21250
United States

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