Civil rights law is today moribund. An impressive edifice, built upon the ruins of Jim Crow, with the blood and sweat of the civil rights movement, and intended to both dismantle that system and ensure the civil liberties that Jim Crow illustrated were all too easily lost, civil rights law was to be the lasting monument of the civil rights struggle. Fortified by this legacy, civil rights law retains a symbolic value, implying that there are formidable forces working to protect citizens from abusive state action, to ensure a broad anti-discrimination ethic, and to fix the wrongs of Jim Crow. The body of civil rights law promises much indeed. Only, today, it crumbles when one reaches for it, it disappoints when one seeks its solace, it disappears when it is needed most. It is a great ruin, a magnificent display of rotting grandeur.
This article articulates theory explaining the demise of civil rights law and illustrates the operation of that theory in the demise of 42 U.S.C. § 1985(3). The theory is that civil rights litigation has been plagued from the beginning by an “activist insecurity” which has undercut civil rights law even during the “revival” period when courts were self-consciously seeking to expand civil rights causes of action in the name of an age of rights. When the orientation of the courts changed-circa the Supreme Court's 1977 and 1978 terms-the judicial style along with the legal precedents created under the influence of the activist insecurity made civil rights law particularly vulnerable. And, since about 1978 that law has been eviscerated, leaving a seemingly untouched carcass hanging trophy-like in the halls of conservative retrenchment.
63 La. L. Rev. 785 (2003).
White, John Valery, "The Activist Insecurity and the Demise of Civil Rights" (2003). Scholarly Works. Paper 305.