Article

White Injury and Innocence: On the Legal Future of Antiracism Education

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not. The vulnerability of antiracism education to constitutional censure is the most recent illustration of how far antidiscrimination law has gone not in undercutting, but further entrenching, racial hierarchy in the United States. The legislative, litigation, and curricular wars surrounding antiracism education also remind us that race is significant for reasons that go beyond materiality. Rather, legal and social discourse about racism shapes notions of racial injury and ultimately impedes efforts to respond to even the material consequences of enduring racial inequality. Tracking and analyzing the anti-antiracism legislation and lawsuits provides those who are willing to follow it a map both to where antidiscrimination law must be changed, and to where antiracism education is most needed.

Introduction

In June of 2021, a student testified before his school board in Lakeville, Minnesota. In what surely was stirring testimony coming from a child so young, nine-year-old N.W. stated:

I do not judge people by the color of their skin, I don’t really care what color their hair, skin, or eyes is [sic]. I judge by the way they treat me . . . I do not care or look at the color of skin, but you make me think of it. I have Asian, Mexican, white, Chinese, black [sic] friends and I don’t care . . . They are just my friends. You have lied to me and I am very disappointed in all of you.1 1.Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original).Show More

The “lies” to which N.W. referred purportedly came from antiracism initiatives adopted in Independent School District 194 and included an “Inclusive Poster Series” which approved the statement “At Lakeville Area Schools we believe Black Lives Matter and stand with the social justice movement this statement represents.”2 2.Id. at 1.Show More In the lawsuit parents and students brought challenging these initiatives, plaintiffs focused on the district’s efforts to “instruct[] children as young as fifth grade that structural racism dominates” American society.3 3.Id. at 3.Show More

The Lakeville testimony and accompanying lawsuit are but one flashpoint in a larger movement challenging antiracism (also referred to as “anti-racist”) teachings and curricular initiatives in schools across the country. Although antiracism education has a long history, in the wake of George Floyd’s murder in the summer of 2020, its teachings attracted intense attention and elicited renewed commitments among educators to teach more explicitly about the function, operation, and harm of racism in the United States. Opposition to antiracism education, however, eventually became a political rallying cry for conservative politicians and policymakers. Reframing the teachings as the deployment of critical race theory (“CRT”) in K–12 curricula, pundits and politicians sounded alarms regarding this sort of education, prompting censure, even, by former President Donald Trump in the fall of 2020.4 4.Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times (Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM].Show More

That critical race theory is a graduate-level, methodological interrogation of race not taught at the primary and secondary level is of no consequence.5 5.Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001).Show More The phrase “critical race theory” has become shorthand for education that teaches students about structural or institutional racism, prompts children to consider their social identities, or makes explicit commitments to educational equity—the essential work of antiracism education. And through legislation, parent advocacy, and litigation, antiracism education is under attack.

Observers might be tempted to dismiss the attacks as a temporary political strategy, and indeed, there are suggestions that politicians understand these attacks to be useful for energizing voters. Nevertheless, the scope of the challenges, as well as the issues they raise in litigation, compel parents, policymakers, and legal scholars to consider the nature of antiracist education and the social and legal responses to its inclusion in K–12 education.

Fully considering antiracism education reveals it to be both less and more threatening than supposed. Less because at its core are basic lessons about race and individual responses to injustice that should not conflict with a social6 6.Jennifer L. Hochschild & Nathan Scovronick, The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens).Show More and jurisprudential7 7.See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”).Show More understanding of schools as sites for cultivating citizenship and instilling the practices of democracy. Antiracism education, however, is also more threatening because it attempts to reveal and interrogate racial hierarchies—a problem for those who either deny those hierarchies or believe them to be justified. Further, to the extent that antiracism education explicitly names whites as beneficiaries of racism, it is also a frontal assault on “innocent” white racial identity—a commitment which is implicit throughout equal protection jurisprudence,8 8.See infra notes 203–08 and accompanying text.Show More and is now made explicit in the vociferous challenges to antiracism education.

Ultimately, the reaction to antiracism education illustrates just how deeply invested Americans are, wittingly and unwittingly, in white supremacy, how disorienting it can feel to individuals to destabilize racial hierarchy, and how far antidiscrimination law has gone not in undercutting, but in further entrenching, these attitudes and norms. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, colorblindness, and white innocence, antiracism education is vulnerable to legal challenge in a way that precursors like multi-culturalism were not.

Litigation challenges are still developing. Some lawsuits will ultimately be dismissed on account of pleading defects, while other suits may be resolved on freedom of expression grounds. Nevertheless, closely examining the antidiscrimination legal framework within which challenges to antiracism education will play out presents an opportunity not only to reconsider those frameworks, but to think more broadly about the nature of race, particularly as it operates in school settings.

Racial equality work is sometimes critiqued as excessively invested in psychic harm, language, and symbols,9 9.See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”).Show More instead of more properly focused on the material sources and consequences of racial inequality. Epitomized by the writing of a scholar like Cedric Johnson, the critique maintains that antiracism education and racial affinity movements, despite having brought the marginalization of Black civilians to the forefront of public consciousness, have moved the United States no closer to “concrete, substantive reform.”10 10.Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7].Show More As Johnson insists, what is needed instead is a “popular, anti-capitalist politics, rooted in situated class experiences.”11 11.Id.Show More In the context of public education, this critique might demand equalized resources rather than diversity training.

To be sure, the ways in which material inequality informs racial inequality is key to realizing substantive equality for all Americans. That disparities in wealth and income make Black Americans vulnerable to heightened rates of incarceration,12 12.Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group).Show More abusive policing,13 13.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”).Show More more dangerous neighborhoods,14 14.See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status).Show More and inferior health and social services15 15.See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes).Show More is well-documented. In education, public school financing, anchored in local tax bases themselves shaped by residential segregation, housing discrimination, redlining, and blockbusting, continues to limit the tax pool from which majority-minority schools can draw. A 2019 study, for example, found that non-white school districts received $23 billion less in funding than did white schools, and that for every student enrolled, non-white school districts received $2,226 less than did white districts.16 16.$23 Billion, EdBuild 4, app. A (2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL].Show More Accordingly, there have long17 17.See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents).Show More been warranted calls for the redistribution of resources as a solution to the education gap, particularly in the wake of a failed integration project and the resegregation of American public schools by race.18 18.Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods).Show More

Nevertheless, the curricular wars surrounding antiracism education remind us that the ideology of race still functions in less concrete, but no less powerful, ways. Race and racial disparities are more than just material, more than new classroom supplies and equitable teacher salaries. Rather, race is also about psychic harm. Part of that psychic harm is certainly in the story that material inequalities tell: that children of color deserve less because they are valued less. But harm also stems from the national mythologies we construct about race, and the ways in which those mythologies dictate our responses to inequality, legal and otherwise. Our national story about the end of racism as the result of a victorious civil rights movement has impeded efforts to engage institutional bias and systemic oppression. Our national story about innocent white identity has obstructed efforts to interrogate racial hierarchy and adopt solutions necessary to dismantle racial stratification.

Our mythologies about race have also set baselines for the conception of racial harm. Indeed, the ways in which society collectively understands the nature of racial injury will dictate the very remedies we choose to address racialized material disparities if we choose to do so at all. The narrative regarding racial injury dictated by antidiscrimination law tells Americans that the harm of homogenous classrooms for whites is a compelling interest justifying race-conscious remedies, but societal discrimination leveled against Black students is not. Exclusion from elite education in the absence of race-conscious admissions policies is not an equal protection violation, but the de minimis19 19.See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action).Show More harm to “innocent” whites from affirmative action is. The repeated and consistent exposure of Black students to racial epithets in required reading is not a harm recognized by equal protection.20 20.See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection).Show More But, as illustrated by the emerging round of legal opposition to antiracism education, teaching students about how whites benefit from whiteness in a racialized society is a cognizable harm because it might make students “feel bad.”

These asymmetric narratives regarding injury are central to maintaining racial hierarchy. Accordingly, it is no surprise that politicians and parents are so heavily invested in the outcome, for nothing less than racial status is at stake in the battle for what we teach young people about race. Though dismissal of all anti-antiracism education legislation and lawsuits is possible, the opportunity that current antidiscrimination law provides plaintiffs to present antiracism education as racist education is a reminder of the symbolic import of race, a red flag regarding inversions in racial injury, and a troubling sign of equality jurisprudence’s instability.

Part I considers the form and function of antiracism education, considering its basic tenets, documenting its rise in prominence, and noting the critiques antiracist education prompts. Part II engages the legal responses to antiracism education, from legislation intended to undermine it to lawsuits that challenge it as an affront to civil rights and equality. Given both conceptual and instrumental differences between antiracism education and the multicultural education curricula that came before it, antiracism education is particularly vulnerable to attack under current antidiscrimination norms and doctrine. Part III considers the ways in which antidiscrimination law creates, protects, and increasingly centers “innocent” white racial identity and closes with a reminder of the importance of K–12 schools as sites for understanding race and racial subordination in the United States.

  1. Complaint at 3, Cajune v. Indep. Sch. Dist. 194, 2022 WL 179517 (D. Minn. Aug. 6, 2021) (No. 0:21-cv-01812) (first alteration in original). ↑
  2. Id. at 1. ↑
  3. Id. at 3. ↑
  4. Michael Crowley, Trump Calls for ‘Patriotic Education’ to Defend American History from the Left, N.Y. Times
    (

    Sept. 17, 2020), https://www.nytimes.com/2020/09/17/us/politics/trump​-patriotic-education.html [https://perma.cc/K56W-F7Z2]; see Evan Gerstmann, Trump Says He Will Punish Schools that Teach the New York Times’ ‘1619’ Project by Withholding Federal Funds, Forbes (Sept. 6, 2020), https://www.forbes.com/sites/evangerstmann/2020/09/​06/trump-says-he-will-punish-schools-that-teach-the-new-york-times-1619-project-by-withh​olding-federal-funds/?sh=4a241ca17cb5 [https://perma.cc/YDN3-8DSM]. ↑

  5. Critical race theory is a race-based systemic interrogation of legal reasoning, doctrine, and institutions, taught in law schools but also used in other disciplines. Although it overlaps with other legal subjects that implicate race, it is distinct from subjects like constitutional law, immigration law, and criminal law in its comprehensive examination of the function of race in American law. While CRT considers some of the same issues and problems that civil rights and ethnic studies courses engage, the theory broadens the methodological perspective, bringing in history, economics, and group- and self-interest, among other discourses. In a departure from traditional civil rights work, CRT questions the foundations of liberalism, including legal theories regarding equality, the mechanics of legal reasoning, and principles of constitutional law. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2001). ↑
  6. Jennifer L. Hochschild & Nathan Scovronick
    ,

    The American Dream and the Public Schools 1–2 (2003) (arguing that most Americans understand education as a place where children will reach their full potential and become good citizens). ↑

  7. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (explaining that schools educate the young for citizenship); New Jersey v. T.L.O., 469 U.S. 325, 373 (1985) (Stevens, J., concurring in part and dissenting in part) (noting that schools are places to inculcate the values essential to meaningful exercise of the rights and responsibilities of a self-governing citizenry); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (recognizing that education is “the very foundation of good citizenship” and “a principal instrument in awakening the child to cultural values”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35–36 (1973) (“Exercise of the franchise . . . cannot be divorced from the educational foundation of the voter.”). ↑
  8. See infra notes 203–08 and accompanying text. ↑
  9. See, e.g., Wendy Brown, Wounded Attachments, 21 Pol. Theory 390, 398, 403 (1993) (“[I]nsofar as [identity politics is] premised on exclusion from a universal ideal, [politicized identities] require that ideal, as well as their exclusion from it, for their own perpetuity as identities. . . . [I]dentity structured by this ethos becomes deeply invested in its own impotence, even while it seeks to assuage the pain of its powerlessness through its vengeful moralizing, through its wide distribution of suffering, through its reproach of power as such.”). ↑
  10. Cedric Johnson, The Panthers Can’t Save Us Now, Catalyst: A Journal of Theory & Strategy (Spring 2017), https://catalyst-journal.com/2017/11/panthers-cant-save-us-cedric-johnson#po-fn. [https://perma.cc/737Z-KVU7]. ↑
  11. Id. ↑
  12. Nathaniel Lewis, Mass Incarceration: New Jim Crow, Class War, or Both?, People’s Pol’y Project (Jan. 30, 2018), https://www.peoplespolicyproject.org/wp-content/uploads/2018/01/​MassIncarcerationPaper.pdf [https://perma.cc/TF53-RV5J] (arguing that the primary reason for the large gap between black and white incarceration rates is the differences in class composition of each racial group). ↑
  13. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 3, 42 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04​/ferguson_police_department_report.pdf [https://perma.cc/E7MP-8MGH] (documenting municipal court practices that exact harsh penalties and fines in an attempt to sustain the city’s budget); Campbell Robertson, A City Where Policing, Discrimination and Raising Revenue Went Hand in Hand, N.Y. Times (Mar. 4, 2015), https://www.nytimes.com/2015/03/05/us/us-details-a-persistent-pattern-of-police-discrimination-in-a-small-missouri-city.html [https://pe​rma.cc/QV4J-DJQL] (documenting the “reflexive and gratuitous hostility [of Ferguson police] toward black residents that goes beyond arrests into routine uses of force”). ↑
  14. See, e.g., Chaeyoung Cheon, Yuzhou Lin, David J. Harding, Wei Wang & Dylan S. Small, Neighborhood Racial Composition and Gun Homicides, 3 JAMA Network Open 1, 1–2 (2020) (suggesting that lack of institutional resources and opportunities created by racial wealth gaps and underinvestment subject Black people to higher gun homicide rates in their neighborhoods, even after controlling for individual socioeconomic status). ↑
  15. See, e.g., Tiffiany Howard, Marya Shegog, DeaJiane McNair & Mikale Lowery, Black Health and Black Wealth: Understanding the Intricate Linkages Between Income, Health, and Wealth for African Americans 7–8, 14 (2019) (finding that while income dictates access to high nutrient food and healthier neighborhoods, lack of wealth contributes to intergenerational insecurity that corresponds with negative health outcomes). ↑

  16. $23 Billion, EdBuild

    4,

    app. A

    (

    2019), https://edbuild.org/content/23-billion/full-report.pdf [https://perma.cc/AX8H-R5FL]. ↑

  17. See Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 487–92 (1976) (documenting the resistance of civil rights organizations like LDF to strategies that deemphasized integration, even after it became obvious that alternatives to desegregation, like genuinely equal funding for black schools, should have been considered in the face of white resistance and in response to the requests of Black parents). ↑
  18. Proceeding from the assumption that a segregated school is one where less than 40 percent of students are white, the number of schools where less than forty percent of students are white approximately doubled between 1996 and 2016, while the percentage of children of color attending such schools rose from fifty-nine to sixty-six percent. The percentage of Black students, in particular, attending segregated schools rose from fifty-nine to seventy-one percent. Will Stancil, School Segregation Is Not a Myth, The Atlantic (Mar. 14, 2018), https://www.theatlantic.com/educati​on​/archive/2018/03/school-segregation-is-not-a-myth​/555614/ [https://perma.cc/6ZCF-YWF​J]; Gary Orfield, Erica Frankenberg, Jongyeon Ee & John Kuscera, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, Civil Rights Project 10 tbl.3 (2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/br​own-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf [https://perma.cc/86WC-VWY2] (documenting a long-term trend toward resegregation); Alvin Chang, The Data Proves that School Segregation Is Getting Worse, Vox (Mar. 5, 2018), https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data [https://perma.cc/TPK8-EQPM] (explaining that Black students are increasingly isolated in poor, segregated neighborhoods). ↑
  19. See Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 Duke L.J. 781, 807 n.112 (2006) (explaining that affirmative action programs lead to a “modest decrease” in white students’ chances of being admitted); Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1046 (2002) (describing the “common yet mistaken” belief that when white applicants are denied admission in preference of minority applicants with equal or lesser qualifications, the cause is affirmative action). ↑

  20. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1024, 1029, 1032 (9th Cir. 1998) (concluding that the required reading that included over two hundred instances of racial slurs regarding Black people did not run afoul of equal protection). ↑

Defining “Substantial Burdens” on Religion and Other Liberties

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose real limits unless it is given a way to do so that avoids forcing judges to second-guess claimants’ beliefs about what is important in religious matters. And here legal texts, history, and precedent do not shed much light.

For answers, this Article looks to how our law handles the same issue for other liberties—when legal burdens on them trigger scrutiny. It is the first article to pursue this approach, which has support in case law on other liberties. This Article offers, in the process, the most comprehensive theory to date of how other liberties guard against incidental burdens. Each liberty is shaped by what I call an “adequate alternatives” principle: a law that burdens the liberty will trigger heightened scrutiny if the law leaves no adequate alternative way to exercise that liberty. And an alternative is adequate if it lets someone realize the interests served by that liberty to the same degree, and at no greater cost. This principle can guide doctrine on those liberties in new circumstances and inform debates about which liberties to constitutionalize in the first place.

And applying the principle to define “substantial burdens” on religious liberty would resolve many issues that have vexed courts. The resulting test would urge deference to believers on religious questions but not on what “substantial” means, thus limiting this liberty. Yet the test would expand protection for religious minorities harmed by existing doctrines biased toward mainstream religions. And it would offer cogent answers to a range of cases discussed here, involving inmates, street preachers, and protesters; government contractors raising conscience claims; churches challenging zoning laws; and tribes challenging public works projects.

Introduction

Does the Free Exercise Clause entitle people to exemptions from general laws that happen to burden their religion? For decades, the U.S. Supreme Court said yes.1 1.See, e.g., Sherbert v. Verner, 374 U.S. 398, 403–04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 214–29 (1972).Show More Then in Employment Division v. Smith (1990),2 2.494 U.S. 872, 878–79 (1990).Show More it said no. Now, in Fulton v. City of Philadelphia (2021),3 3.141 S. Ct. 1868 (2021).Show More five Justices have signaled a willingness to reverse Smith and say yes again.4 4.See id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring) (finding “textual and structural arguments against Smith . . . more compelling”); id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in the judgment) (calling for Smith to be overruled).Show More That would restore heightened scrutiny of—and exemptions from—neutral laws that incidentally burden religion. But two pivotal Justices in Fulton said that if and when the Court reverses Smith, it will face several questions about what should replace Smith. This Article proposes answers, with wide-ranging implications for the future—and limits—of free exercise rights. Its framework also provides a method for developing doctrines on other liberties, like speech, guns, and travel—and for telling which liberties a system ought to constitutionalize at all.

Under the pre-Smith regime, which exists now in more limited contexts under some federal and state statutes, courts would ask if a law had “placed a substantial burden” on a person’s religious exercise.5 5.Hernandez v. Comm’r, 490 U.S. 680, 699 (1989).Show More If so, courts would apply heightened scrutiny, granting her an exemption from the law unless doing so would have harmed a compelling interest.6 6.Sherbert, 374 U.S. at 404, 406–07.Show More But how to test for substantial burdens? That is, when should heightened scrutiny kick in?

This Article develops answers based on how our law handles the same issue as it arises for other constitutional liberties—when legal burdens on them are serious enough to trigger heightened scrutiny.7 7.See infra Section II.A.Show More Courts have developed large bodies of case law on that question. And in answering this issue for one liberty, courts have often drawn on the doctrines defining the trigger for heightened scrutiny under other liberties.8 8.Id.Show More Some Justices have hinted that borrowing from other liberties might be the best way to limit religious liberty, too (and one circuit has already gestured vaguely in this direction9 9.See, e.g.,Mahoney v. Doe, 642 F.3d 1112, 1117, 1121 (D.C. Cir. 2011) (determining whether a law substantially burdens religion by asking whether it leaves open a “multitude of means” for practicing religion, echoing the “ample alternative channels of communication” test used in the same opinion to evaluate a free speech claim (internal quotation marks and citation omitted)).Show More).10 10.See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (suggesting, based on analogies to other liberties, that free exercise protections against incidental burdens should not be categorical).Show More This method promises to provide a practical way for courts to limit religious liberty. But this Article is the first to pursue this approach—offering, in the process, the most comprehensive theory to date of how constitutional liberties in general guard against incidental burdens.

As shown below, courts have relied on what I call an adequate alternatives principle.11 11.See infra Part II.Show More This principle triggers heightened scrutiny of a law that burdens a civil liberty if the law leaves no adequate alternative means of exercising the liberty at issue. And an alternative is adequate if it allows people to pursue the interests served by that liberty to the same degree and at no greater cost.

This Article shows that applying that principle to religion offers easy-to-implement answers to several questions about the scope of religious liberty. The answers are especially timely as critics fear that if and when this particular Court reinstates free exercise exemptions, it will fail to impose sensible limits on exemptions.12 12.See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/3RD3-T74T].Show More The concern not to over-protect has arisen especially in politically charged cases raising Christian claims in the “conscience wars.”13 13.See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2520 (2015).Show More These include Fulton itself, which involved a Catholic agency declining to work with same-sex couples as foster parents.14 14.Fulton, 141 S. Ct. at 1874–75.Show More

There and elsewhere, if courts found a “substantial burden” anytime someone claimed one, however trivial the burden in fact was, courts would be doing what skeptics of exemptions—and several Justices in Fulton15 15.Justice Barrett wrote an opinion, joined in full by Justice Kavanaugh, that indicated a willingness to revisit Smith. Id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring). Both Justices may be needed for a majority to reverse Smith since only three Justices called for reversal outright. See id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring). Justice Breyer joined the portion of Justice Barrett’s opinion raising questions about what would replace Smith. Id.at 1882 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). However, Justice Breyer himself had previously joined an opinion arguing that Smith was wrongly decided. See City of Boerne v. Flores, 521 U.S. 507, 544–45 (1997) (O’Connor, J., joined by Breyer, J., dissenting).Show More—oppose: replacing Smith’s categorical denial of exemptions with “an equally categorical strict scrutiny regime,”16 16.Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring).Show More as Justice Barrett put it. This would give religious claimants carte blanche. To avoid doing so, courts must insist, as Justice Sotomayor once wrote of a statutory religious exemptions regime, that merely “thinking one’s religious beliefs are substantially burdened . . . does not make it so.”17 17.Wheaton Coll. v. Burwell, 573 U.S. 958, 966 (2014) (Sotomayor, J., dissenting).Show More

But as Part I shows, a single fear has stopped the Court from setting real limits on “substantial burdens,” including in culture-war-related cases like Burwell v. Hobby Lobby Stores, Inc.18 18.Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–91 (2014) (granting religious exemptions from a federal regulation requiring employers to provide insurance coverage for contraceptives).Show More The Court worried that any attempt to limit successful claims would require judges to play theologians, deciding for themselves what is true or important in religious matters.19 19.Id. at 725. The risk of forcing judges into this role also concerned the Justices in Fulton who held off on reversing Smith, see Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring), as well as the Smith Court itself, see Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990).Show More

So for any substantial burdens test to have a shot at appealing to this strongly pro-religion Court, it will have to avoid forcing judges to do theology. This Article offers a practical test that does so while still imposing real limits on religious claims in culture-war cases. But as seen in many other applications below, this test is also well-suited to “the vast majority of claims brought under” religious liberty statutes, which “have nothing to do with topics like contraception, gay rights, or abortion.”20 20.Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 874 (2019); see also Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 384 (2018) (finding only two Religious Freedom and Restoration Act (“RFRA”) challenges filed in the U.S. Court of Appeals for the Tenth Circuit in the thirty-two months after the Hobby Lobby decision, neither of which involve abortion, contraception, or gay rights).Show More

The substantial burdens test proposed here also aims to avoid a second problem, which has plagued lower courts’ substantial burden doctrines: by relying on concepts drawn from mainstream religions, courts have harmed religious minorities.21 21.See infra Subsection III.D.1.Show More So for minorities and also (as seen below) inmates, the substantial burdens test has been “the most difficult doctrinal hurdle” to clear.22 22.Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1777.Show More For example, one study found that courts hearing “Muslim prisoner claims” often second-guessed the prisoners’ religious views and “summarily den[ied]” their claims.23 23.Adeel Mohammadi, Note, Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners, 129 Yale L.J. 1836, 1841–42, 1886 (2020).Show More Because minorities bring the majority of claims under existing statutes,24 24.Over five years in the Tenth Circuit, “half of all decisions involve[d] prisoners or asylum seekers,” and over half of the prisoners’ claims were brought by non-Christians. Goodrich & Busick, supra note 20, at 356–57, 376. Among non-prisoner and non-asylum cases, Muslims were overrepresented by a ratio of 11.86:1, Native Americans 6.78:1, Fundamentalist Mormons 5.08:1, and Hindus 3.39:1. Id. at 374.Show More refining the “substantial burdens” test would meet a pressing need whether or not Smith is reversed. That need arises in cases involving Apache Indians wearing headdresses with eagle feathers, Sikhs carrying kirpans to work, Santerían priests performing sacrifices, Black churches using inner-city spaces, Muslim prisoners growing beards, and Jewish inmates keeping kosher.25 25.John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination 10, 17 (2017).Show More This Article’s substantial burdens test aims to offer protection in such cases without over-protecting in others.

But as Part II reveals, this basic problem—developing a balanced but limited trigger for exemptions from incidental burdens—is not unique to religious liberty. Courts face the same challenge in implementing other constitutional liberties. For example, this exact issue arose regarding abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.26 26.505 U.S. 833, 874 (1992).Show More In fact, it is an underappreciated fact that the changes Casey made to Roe v. Wade27 27.410 U.S. 113 (1973).Show More were entirely about limiting which incidental burdens on pre-viability abortion would require a compelling justification and which would not.28 28.It is sometimes supposed that Casey did away with Roe’s heightened scrutiny—Roe’s demand for a compelling justification for abortion laws—altogether. See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 95 (2013) (noting Casey “rejected Roe v. Wade’s test of strict scrutiny, adopting in its place the new and unique undue burden standard” (footnote omitted)). But, in fact, Casey did not “disturb” but rather “reaffirm[ed]” what it called Roe’s “essential holding” on when the state interest in fetal life was and was not constitutionally sufficient to support laws preventing abortion—and thus also reaffirmed, implicitly, Roe’s demand that such laws serve a compelling interest. 505 U.S. at 871, 878–79. Casey simply shrank the class of regulations that would trigger such scrutiny: not all abortion restrictions, but only those imposing an “undue burden” or prohibition. See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 331, 340 n.46 (2022). While the Court has since, in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), reversed Casey along with Roe, Casey’s framework remains a helpful guide to how our law has long addressed incidental burdens on individual liberties.Show More And Casey’s express reason for introducing this distinction into abortion law was to bring abortion in line with all other constitutional liberties, under which “not every law which makes [the liberty] more difficult to exercise is, ipso facto, an infringement of that right.”29 29.Casey, 505 U.S at 873 (plurality opinion).Show More Specifically, Casey held, only laws imposing an “undue burden” on abortion should require a compelling justification.30 30.See id. at 874.Show More And while this test was criticized as novel, its substance resembled doctrines playing the same narrowing role for other liberties.31 31.See generally Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 894–908 (1994) (arguing that the Supreme Court has undertaken analyses similar to the undue burden analysis when considering liberties such as the right to marry, the right of political association, and property rights, among others); see also infra Section II.A.Show More Bringing out the resemblance here will show how to extend those other liberties’ doctrines to new circumstances—and how to fashion a well-supported substantial burdens test for religion, in the absence of textual or historical guidance for doing so.

To that end, Part II draws a principle from the laws of speech, abortion under Roe and Casey, and other liberties. These doctrines not only forbid state action that targets protected conduct, but also guard against incidental burdens from some neutral laws.32 32.See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1178–79, 1202, 1209, 1223 (1996) (noting that a “floodgates concern” has led courts to limit civil liberties protections against merely incidental burdens).Show More Which? The law’s answer is guided by what I call an adequate alternatives principle. This principle triggers heightened scrutiny of a law burdening a civil liberty if the law leaves no adequate alternative means of exercising the liberty. But courts have said little on what makes an alternative “adequate.” To derive an answer, Part II extrapolates from case law and rights theory. Ultimately, the adequate alternatives principle ensures that laws curbing some liberty will leave people other ways to pursue the interests served by that liberty to the same degree, at no greater cost. This account can be used to clarify the scope of any number of liberties.

Finally, Part III applies the adequate alternatives principle to limit what will count as a “substantial burden” on religion.33 33.Other scholars have discussed the adequate alternatives principle in the context of religion but to opposite effect—arguing that because such alternatives are hard to come by in the case of religion, religious burdens should trigger stricter protection. See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020–2021 Cato Sup. Ct. Rev. 33, 48–49.Show More It offers a unified resolution of dozens of cases and several unsettled questions. The cases addressed involve prisoners and death row inmates; street preachers and protesters; government contractors raising conscience claims; churches challenging zoning laws; and tribes challenging public works projects. And the general legal questions addressed in Part III, some of which were raised by Justices in Fulton, include the following: What questions judges should ask in assessing substantiality, whether to allow exemptions from “garden-variety laws,”34 34.Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (citation omitted).Show More whether to treat “indirect and direct burdens on” religion differently,35 35.Id.Show More what forms of religious exercise to count in the first place, when to defer to claimants’ beliefs about a burden’s significance, and when not to defer. The test will ensure that heightened scrutiny applies only when the religious claimant really is worse off than others subject to the same law, allaying concerns about over-protecting religion. But the test will also avoid the constitutional landmines of having judges do theology or giving short shrift to less familiar, minority religious claims.

  1. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403–04 (1963); Wisconsin v. Yoder, 406 U.S. 205, 214–29 (1972). ↑
  2. 494 U.S. 872, 878–79 (1990). ↑
  3. 141 S. Ct. 1868 (2021). ↑
  4. See id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring) (finding “textual and structural arguments against Smith . . . more compelling”); id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in the judgment) (calling for Smith to be overruled). ↑
  5. Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). ↑
  6. Sherbert, 374 U.S. at 404, 406–07. ↑
  7. See infra Section II.A. ↑
  8. Id. ↑
  9.  See, e.g., Mahoney v. Doe, 642 F.3d 1112, 1117, 1121 (D.C. Cir. 2011) (determining whether a law substantially burdens religion by asking whether it leaves open a “multitude of means” for practicing religion, echoing the “ample alternative channels of communication” test used in the same opinion to evaluate a free speech claim (internal quotation marks and citation omitted)). ↑
  10. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882–83 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (suggesting, based on analogies to other liberties, that free exercise protections against incidental burdens should not be categorical). ↑
  11. See infra Part II. ↑
  12.  See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/3RD3-T74T]. ↑
  13. See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2520 (2015). ↑
  14. Fulton, 141 S. Ct. at 1874–75. ↑
  15. Justice Barrett wrote an opinion, joined in full by Justice Kavanaugh, that indicated a willingness to revisit Smith. Id. at 1882 (Barrett, J., joined by Kavanaugh, J., concurring). Both Justices may be needed for a majority to reverse Smith since only three Justices called for reversal outright. See id. at 1883, 1926 (Alito, J., joined by Thomas & Gorsuch, JJ., concurring). Justice Breyer joined the portion of Justice Barrett’s opinion raising questions about what would replace Smith. Id. at 1882 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). However, Justice Breyer himself had previously joined an opinion arguing that Smith was wrongly decided. See City of Boerne v. Flores, 521 U.S. 507, 544–45 (1997) (O’Connor, J., joined by Breyer, J., dissenting). ↑
  16. Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring). ↑
  17. Wheaton Coll. v. Burwell, 573 U.S. 958, 966 (2014) (Sotomayor, J., dissenting). ↑
  18. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 688–91 (2014) (granting religious exemptions from a federal regulation requiring employers to provide insurance coverage for contraceptives). ↑
  19. Id. at 725. The risk of forcing judges into this role also concerned the Justices in Fulton who held off on reversing Smith, see Fulton, 141 S. Ct. at 1883 (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring), as well as the Smith Court itself, see Emp. Div. v. Smith, 494 U.S. 872, 886–87 (1990). ↑
  20. Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871, 874 (2019); see also Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 384 (2018) (finding only two Religious Freedom and Restoration Act (“RFRA”) challenges filed in the U.S. Court of Appeals for the Tenth Circuit in the thirty-two months after the Hobby Lobby decision, neither of which involve abortion, contraception, or gay rights). ↑
  21. See infra Subsection III.D.1. ↑
  22. Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1777. ↑
  23.  Adeel Mohammadi, Note, Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners, 129 Yale L.J. 1836, 1841–42, 1886 (2020). ↑
  24. Over five years in the Tenth Circuit, “half of all decisions involve[d] prisoners or asylum seekers,” and over half of the prisoners’ claims were brought by non-Christians. Goodrich & Busick, supra note 20, at 356–57, 376. Among non-prisoner and non-asylum cases, Muslims were overrepresented by a ratio of 11.86:1, Native Americans 6.78:1, Fundamentalist Mormons 5.08:1, and Hindus 3.39:1. Id. at 374. ↑
  25. John Corvino, Ryan T. Anderson & Sherif Girgis, Debating Religious Liberty and Discrimination 10, 17 (2017). ↑
  26. 505 U.S. 833, 874 (1992). ↑
  27. 410 U.S. 113 (1973). ↑
  28. It is sometimes supposed that Casey did away with Roe’s heightened scrutiny—Roe’s demand for a compelling justification for abortion laws—altogether. See, e.g., Mark D. Rosen & Christopher W. Schmidt, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. Rev. 66, 95 (2013) (noting Casey “rejected Roe v. Wade’s test of strict scrutiny, adopting in its place the new and unique undue burden standard” (footnote omitted)). But, in fact, Casey did not “disturb” but rather “reaffirm[ed]” what it called Roe’s “essential holding” on when the state interest in fetal life was and was not constitutionally sufficient to support laws preventing abortion—and thus also reaffirmed, implicitly, Roe’s demand that such laws serve a compelling interest. 505 U.S. at 871, 878–79. Casey simply shrank the class of regulations that would trigger such scrutiny: not all abortion restrictions, but only those imposing an “undue burden” or prohibition. See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 331, 340 n.46 (2022). While the Court has since, in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022), reversed Casey along with Roe, Casey’s framework remains a helpful guide to how our law has long addressed incidental burdens on individual liberties. ↑
  29. Casey, 505 U.S at 873 (plurality opinion). ↑
  30. See id. at 874. ↑
  31. See generally Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 894–908 (1994) (arguing that the Supreme Court has undertaken analyses similar to the undue burden analysis when considering liberties such as the right to marry, the right of political association, and property rights, among others); see also infra Section II.A. ↑
  32. See Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1178–79, 1202, 1209, 1223 (1996) (noting that a “floodgates concern” has led courts to limit civil liberties protections against merely incidental burdens). ↑
  33. Other scholars have discussed the adequate alternatives principle in the context of religion but to opposite effect—arguing that because such alternatives are hard to come by in the case of religion, religious burdens should trigger stricter protection. See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020–2021 Cato Sup. Ct. Rev. 33, 48–49. ↑
  34. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (2021) (Barrett, J., joined by Breyer & Kavanaugh, JJ., concurring) (citation omitted). ↑

  35. Id. ↑

The Promise and Perils of Private Enforcement

A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent with their gender identities, and against schools that permit transgender students to play on sports teams consistent with their gender identities. Similar laws permit people to bring enforcement actions against schools that teach critical race theory and against those who sell restricted firearms. State legislatures are considering a host of laws modeled on these examples, along with other novel regimes. These are new adaptations of private enforcement regimes—laws that task members of the public with enforcing regulatory statutes in court. Private enforcement has a somewhat long lineage in U.S. law, dating back to at least the nineteenth century. Since then, in contexts as diverse as employment discrimination, housing discrimination, antitrust, securities, and other contexts, the U.S. legal system has endowed members of the public with the power to enforce regulatory law in court. While these traditional forms of private enforcement have been relatively stable and survived legal challenges, the new adaptations cropping up have prompted challenges in court and intense debate. Among other things, scholars argue that they amount to a form of legal vigilantism, suppress existing legal rights, and pose due process concerns in their design. Yet, to fully distinguish between private enforcement’s traditional forms and these new variations, we need a richer account of the meaning and role of private enforcement in democracy.

This Article provides such an account, analyzing and distinguishing private enforcement regimes through the lens of a participatory democracy theory of regulatory governance. Drawing on debates and thinking at the dawn of the modern regulatory state, this Article argues that private enforcement is democratically valuable when it (1) evens out structural power disparities that can undermine democracy, (2) enables members of the public to bring the expertise of experience to dynamic regulatory environments, and (3) facilitates democratic deliberation. This Article argues that traditional private enforcement suits generally contribute to democratic governance under each rationale. In contrast, the new private enforcement suits perform less well, and indeed, often undermine the rationales for popular participation in regulatory governance. This Article thus articulates a richer theory of popular participation in regulatory governance that shows the promise of private enforcement generally and the perils of recent adaptations.

Introduction

A legal maelstrom is developing over private enforcement litigation. Citizens have long been endowed with the authority to enforce regulatory laws by filing civil suits in court in contexts as diverse as employment discrimination, housing discrimination, antitrust, civil rights, labor and employment, healthcare, and others.1 1.See infra Section I.A. I occasionally use the term “citizen” to refer to private enforcers, in part because private enforcement suits are at times styled as “citizen suits,” particularly in the environmental context. See, e.g., Katherine A. Rouse, Note, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. Rev. 1271, 1275–84 (2018) (exploring citizen suit regimes). However, I am referring to citizenship as a practice of participation in political-legal enforcement, and I do not mean to draw the formal distinction delineating citizens and non-citizens under various U.S. legal regimes, particularly because some private enforcers need not be U.S. citizens under the law and, indeed, some private enforcement regimes protect non-citizens. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 703, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e–2000e-2) (banning employment discrimination on account of national origin).Show More While private enforcement has a long and complicated lineage, paradigmatic private enforcement suits involve members of the public enforcing regulatory statutes governing the marketplace and codifying civil rights commitments.2 2.See infra Section I.A; see also David L. Noll & Luke Norris, Federal Rules of Private Enforcement, 108 Cornell L. Rev. (forthcoming 2023) (manuscript at 2–3) (on file with the author) (noting private enforcement is a product of legislatures “creating private rights of action, modifying court procedures, and subsidizing litigation through attorney’s fee-shifts, damages enhancements, and other measures that make it attractive for private parties and the attorneys who represent them to shoulder the work of enforcing the law”).Show More But across the legal landscape, private enforcement suits are being adapted creatively today—provoking serious legal challenges and prompting heated debate.

Texas’s S.B. 8 is at the center of the maelstrom. The law, which permits people to bring actions against anyone who aids or abets the performance or inducement of an abortion after approximately six weeks of pregnancy, relies exclusively on private enforcement.3 3.S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code Ann. § 171.208 (West 2022)) (permitting “any person” to bring an action against anyone who “aids or abets the performance or inducement of an abortion”).Show More S.B. 8 is part of a new wave of private causes of action, including those that task members of the public with enforcing laws banning transgender people from using bathrooms or playing on sports teams that correspond with their gender identities.4 4.See, e.g., H.B. 1233, § 1(5)(a), 112th Gen. Assemb., Reg. Sess. (Tenn. 2021) (codified at Tenn. Code Ann. § 49-2-805 (2021)) (permitting any student, teacher, or employer to sue if they have to share a restroom with a transgender person); S.B. 1028, 2021 Leg., Reg. Sess. § 12 (Fla. 2021) (codified at Fla. Stat. § 1006.205 (2021)) (permitting students to sue if they are “deprived of an academic opportunity” by being required to play sports with a transgender person).Show More New laws passed and others proposed in several states give people the ability to sue school districts that teach critical race theory (“CRT”) or employers that train based on it, and one law gives people the authority to sue purveyors of restricted firearms.5 5.See, e.g., S.B. 1327, 2022 Leg., Reg. Sess. (Cal. 2022) (codified at Cal. Bus. & Prof. Code § 22949.60 (Deering 2022) and Cal. Civ. Proc. Code § 1021.11 (Deering 2022)) (authorizing private enforcement suits against anyone who manufactures, distributes, or sells restricted firearms); Teaganne Finn, DeSantis Pushes Bill Targeting Critical Race Theory in Schools, NBC News (Dec. 15, 2021), https://www.nbcnews.com/politics/polit‌ics-news/desantis-pushes-bill-targeting-critical-race-theory-schools-n1286049 [https://perma‌.cc/2XDZ-UHP3] (“Republican Florida Gov. Ron DeSantis is pushing a new bill that would allow parents to sue school districts if their children are taught critical race theory in classrooms, which mirrors how Texas’ abortion ban is enforced.”); Laura Meckler, Teachers Union Sues New Hampshire Over Law Barring Certain Race Lessons, Wash. Post (Dec. 13, 2021), https://www.washingtonpost.com/education/2021/12/13/new-hampshire-critical-race-theory-lawsuit/ [https://perma.cc/N884-TTHK] (describing law passed in New Hampshire regarding the teaching of topics around race and its private right of action). For an overview of all CRT bills proposed and passed, see Peter Green, Teacher Anti-CRT Bills Coast to Coast: A State by State Guide, Forbes (Feb. 16, 2022), https://www.forbes.com/sites/pete‌rgreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=306100ec‌4ff6 [https://perma.cc/E5CZ-Y6BJ].Show More

Questions about the legality of these private enforcement schemes are already percolating through the courts. The U.S. Supreme Court recently weighed in on one aspect of S.B. 8.6 6.See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 529–30 (2021) (deciding whether pre-enforcement review of the statute’s constitutionality is permissible).Show More The bill lacks public enforcement mechanisms, in large part to stop pre-enforcement suits against government officials,7 7.See infra notes 50, 67–69 and accompanying text.Show More but a divided Supreme Court allowed pre-enforcement suits to be brought against state medical licensing officials who are tasked with enforcing the law.8 8.See Whole Woman’s Health, 142 S. Ct. at 535–37.Show More The law is also a troubling precedent—in large part because its six-week ban on abortions ran afoul of controlling Supreme Court precedent when it was passed—although that precedent has since been overturned.9 9.See infra note 70 and accompanying text; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022).Show More

The controversy over these laws, however, extends further. Commentators argue that many of these recent adaptations, by having members of the public enforce laws against one another upon merely witnessing their conduct, amount to a form of legal vigilantism, suppress existing legal rights, entrench marginalization, and pose due process concerns in their design.10 10.See Jon D. Michaels & David L. Noll, Vigilante Federalism, Cornell L. Rev. (forthcoming 2023) (manuscript at 3–4, 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=​3915944 [https://perma.cc/J8ZY-V26M] [hereinafter Michaels & Noll, Vigilante Federalism] (advancing all of these arguments); see also Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 51–54), https://ssrn.com/abstract=4072800 [https://perma.cc/CD2F-HQW8] (connecting S.B. 8 to the Fugitive Slave Act and a larger history of private suppression of constitutional rights that includes labor suppression and racially restrictive covenants); Jon Michaels & David Noll, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.c​om/2021/09/04/opinion/texas-abortion-law.html [https://perma.cc/6UPG-PLB9] (“In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have . . . inverted private enforcement laws . . . to enable individuals to suppress the rights of their neighbors, classmates and colleagues.”); Laurence H. Tribe & Stephen I. Vladeck, Texas Tries to Upend the Legal System With Its Abortion Law, N.Y. Times, (July 19, 2021), https://www.nytimes.com/2021/07/19/opinion/texas-abortion-law-reward.html/ [https://perma.cc/G9EF-CZN4] (arguing that S.B. 8 is designed to evade federal review). A federal district court judge overseeing litigation surrounding S.B. 8 found that it violates constitutional due process. See Whole Woman’s Health, 141 S. Ct. at 2494.Show More They also argue that these laws are different in kind from most traditional private enforcement suits, which are characterized by enforcers who suffer direct harm—say, consumer fraud or unlawful termination—enforcing regulatory laws governing those harms.11 11.See Michaels & Noll, Vigilante Federalism, supra note 10, at 28–31.Show More

All of these criticisms have merit. But the debate over which kinds of private enforcement are justified and valuable suffers from a deeper problem: our theory of the role of private enforcement in democracy is underdeveloped.

This Article claims that to better analyze private enforcement’s various forms, we need to first understand the proper role of citizen enforcement in democracy. Fundamentally, the debate over private enforcement is one over whether and when members of the public should participate in enforcing regulatory laws. For some thinkers, tasking members of the public, their lawyers, and courts with regulatory enforcement authority is problematic.12 12.See infra Section II.A.Show More They argue that public enforcers and bureaucrats are more accountable regulatory agents.13 13.See infra Section II.A.Show More Some even argue that private enforcement suits pose constitutional concerns or fit uncomfortably under Article II of the Constitution, which vests law-enforcement power in the executive branch.14 14.See, e.g., Cass R. Sunstein, Article II Revisionism, 92 Mich. L. Rev. 131, 131 (1993) (overviewing and critiquing the argument that “certain grants of standing—to citizens, taxpayers, or others without an individuated injury—would compromise the vesting of executive power in the President and the grant of power to the President, rather than to courts or to citizens, to ‘take Care that the Laws be faithfully executed’”).Show More For others, private enforcement is justified largely for its structural, gap-filling role in regulatory enforcement: private enforcers and their lawyers bring cases that public enforcers might not have the information, resources, or political will to bring.15 15.See infra Section II.A.Show More On this view, private enforcement is valuable in a complementary sense. But the democratic theory that maintains that public enforcers are best vested with authority to implement the law survives largely unscathed.

Lost from view in this dialogue is a deeper theoretical account of popular participation in regulatory governance that both can generally justify private enforcement as a democratic practice and enable us to better sort through its variations. Scholars have noted in passing that private enforcement facilitates popular participation in self-government, but have not developed the rationales explaining why this is so.16 16.See Stephen B. Burbank, Sean Farhang & Herbert Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 666 (2013) (arguing that “private enforcement regimes contribute to participatory and democratic self-government”).Show More But there are rich resources in U.S. legal and intellectual history for developing a better account of popular participation in regulatory governance that can reveal both the promise and the limits of private enforcement.

At the turn of the twentieth century, as questions roiled over whether members of the public should participate in regulatory governance or whether the domain should be left to public officials and experts alone, thinkers developed a participatory democracy account of regulatory governance. At the time, they elaborated three core justifications for why and when we might center members of the public in regulatory enforcement. They asserted that popular participation in regulatory enforcement is democratically valuable because it can (1) even out structural power imbalances that threaten to undermine democracy, (2) enable members of the public to bring the expertise of their direct, affected experience to dynamic regulatory contexts, and (3) help to facilitate democratic deliberation over regulatory norms. These justifications remain relevant today and aid in navigating the evolving terrain of private enforcement regimes.

Traditional private enforcement suits exhibit democratic promise under each justification. First, they often involve dispersed members of the public—at times those who have faced historical and enduring forms of marginalization—bringing suits against often powerful firms or government actors. In this way, citizens as workers, consumers, patients, and in other roles can exercise countervailing power by bringing suits in court. Second, in these suits, private enforcers tend to bring their direct experiences and personally felt harms to courts, leveraging the expertise of experience. And, they do so in contexts where the changing behavior of regulatory subjects raises complicated interpretive questions. In these contexts, members of the public directly experience evolving forms of economic and social behavior and are well-positioned to measure them against regulatory norms and to engage with state institutions to commence processes of regulatory interpretation. And finally, by doing so, private enforcers’ suits can deepen the well of deliberation between members of the public, courts, agencies, and legislators over the meaning and application of regulatory norms.

In contrast, recent adaptations of private enforcement tend to exhibit less democratic promise. First, they often either do not respond to or threaten to exacerbate existing power imbalances. The suits tend to involve citizens enforcing against fellow citizens, hardly David-versus-Goliath-type contests. And the suits at times exacerbate power disparities. The people who are affected the most by enforcement are often those who have faced historical and enduring forms of marginalization, including Black, pregnant, and transgender people. Second, the suits involve enforcers bringing less direct, affected experience to less dynamic regulatory environments. Private enforcers in these regimes tend not to have the kinds of experiences and personally felt harms that enrich regulatory deliberation. They are more voyeurs than victims. And the kinds of suits they bring involve fewer questions of regulatory interpretation and application. In contrast to thorny questions over, say, whether complicated workplace dynamics trigger employment laws or whether certain parallel business conduct triggers antitrust laws, the laws involve simpler questions, like whether a transgender person was in a bathroom that corresponded with their gender identity rather than their sex assigned at birth. Indeed, the largest interpretive questions about these laws may be about whether or not they are constitutional in the first place—whether they violate the rights of transgender students, Black students, and pregnant people—rather than issues of complex, ongoing implementation. Finally, these suits have the potential to undermine democratic deliberation in a variety of ways—including by posing citizen against citizen and fraying the social fabric and by further subordinating people who have faced historical and enduring forms of oppression.

This Article thus mines the deeper democratic foundations of private enforcement litigation to make sense of, and sort among, its variations. Its core claim is that to navigate the brave new world of private enforcement, it is useful to theorize more richly about what democratic regulatory governance entails and who should be its agents. And its core contribution is to develop a participatory democracy account within the context of private enforcement that enables us to analyze its variations. In doing so, it builds on both democratic theories of adjudication and regulatory enforcement in other contexts, particularly in agencies.17 17.See generally, e.g., Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 84–95 (2019) (drawing on Progressive Era thought to develop a democratic vision of administrative law and governance); Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government (2018) (articulating a vision of administrative governance as reasoned administration and showing how administrative law contributes to democratic legitimacy); K. Sabeel Rahman, Democracy Against Domination (2016) (drawing on Progressive Era democratic theory to develop a progressive vision of regulatory governance).Show More One caveat is that while this Article provides a general theoretical account of the promises of traditional private enforcement suits, at the more granular level—in particular, regulatory regimes and enforcement settings—legislators, courts, and civil rule-makers have to make context-dependent decisions about facilitating, calibrating, and at times limiting private enforcement.18 18.See infra note 167 and accompanying text.Show More Such decisions involve a complex constellation of considerations that will vary across contexts. Similarly, particular ways of organizing litigation—including those that stymy public participation—may also undermine private enforcement, and particular private enforcement actions may be less valuable because of redundancy or over-enforcement concerns and calibration issues. This Article, however, at the least can inform analyses about designing private enforcement regimes by augmenting and clarifying the set of general reasons for Congress to rely on private enforcement in traditional contexts and for courts and civil rule-makers to facilitate it.

While this Article supplies a framework for justifying traditional private enforcement suits and critiquing recent adaptations, it also suggests that dynamics in U.S. law and politics may portend a future where traditional suits wither and recent adaptations grow and flourish.19 19.See infra Part IV.Show More Traditional suits are threatened by arbitration’s increasing privatization of private regulatory law enforcement and Supreme Court procedural decisions making it more difficult for private enforcers to bring and maintain their suits.20 20.See infra Section IV.A.Show More At the same time, bills mimicking the recent adaptations are proliferating across state legislatures, increasing the prospects of a future where private enforcement turns away from traditional concerns with marketplace regulation and civil rights and towards issues of cultural grievance and contest.21 21.See infra Section IV.B.Show More This Article suggests that such a paradigm shift might be understood as being emblematic of a political strategy of plutocratic populism—defined by an effort to undermine worker- and consumer-protective regulatory law and enact deregulatory policies favoring the ultra-wealthy and powerful corporations while using cultural grievance to obscure those policies and win working-class support.22 22.See infra notes 225–27 and accompanying text.Show More

This Article proceeds in four Parts. Part I explores the characteristics of both traditional forms and recent adaptations of private enforcement. It also describes some of the emerging critiques of the recent private enforcement regimes. To make inroads in the debate over private enforcement’s variations, Part II takes a step back to consider the various democratic rationales for and against private enforcement. The Part then builds on this body of thought by developing a participatory democracy account of regulatory enforcement, laying out the rationales for it, and sketching out how it might apply to enforcement processes. Part III digs in further, applying the participatory democracy theory to both the traditional forms and newer adaptations of private enforcement. It argues that traditional private enforcement schemes are generally supported by the rationales elaborated in Part II, while the newer adaptations are generally not.

Part IV steps back further and explores how dynamics in our law and politics may mean that traditional private enforcement suits wither while recent adaptations bloom. And it suggests that legal challenges to these new laws and the enactment of copycat laws in Democrat-controlled states are unlikely to stem the tide and indeed will fit into the cultural grievance playbook. The only effective response to the paradigm shift away from traditional private enforcement, then, may perhaps be the most difficult to achieve: building an inclusive working-class populism that re-centers questions of democracy, equality, and economic distribution and calls for vibrant and robust democratic-regulatory governance.

  1. See infra Section I.A. I occasionally use the term “citizen” to refer to private enforcers, in part because private enforcement suits are at times styled as “citizen suits,” particularly in the environmental context. See, e.g., Katherine A. Rouse, Note, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. Rev. 1271, 1275–84 (2018) (exploring citizen suit regimes). However, I am referring to citizenship as a practice of participation in political-legal enforcement, and I do not mean to draw the formal distinction delineating citizens and non-citizens under various U.S. legal regimes, particularly because some private enforcers need not be U.S. citizens under the law and, indeed, some private enforcement regimes protect non-citizens. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 703, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e–2000e-2) (banning employment discrimination on account of national origin). ↑
  2. See infra Section I.A; see also David L. Noll & Luke Norris, Federal Rules of Private Enforcement, 108 Cornell L. Rev. (forthcoming 2023) (manuscript at 2–3) (on file with the author) (noting private enforcement is a product of legislatures “creating private rights of action, modifying court procedures, and subsidizing litigation through attorney’s fee-shifts, damages enhancements, and other measures that make it attractive for private parties and the attorneys who represent them to shoulder the work of enforcing the law”). ↑
  3. S.B. 8, § 3, 87th Leg., Reg. Sess. (Tex. 2021) (codified at Tex. Health & Safety Code Ann. § 171.208 (West 2022)) (permitting “any person” to bring an action against anyone who “aids or abets the performance or inducement of an abortion”). ↑
  4. See, e.g., H.B. 1233, § 1(5)(a), 112th Gen. Assemb., Reg. Sess. (Tenn. 2021) (codified at Tenn. Code Ann. § 49-2-805 (2021)) (permitting any student, teacher, or employer to sue if they have to share a restroom with a transgender person); S.B. 1028, 2021 Leg., Reg. Sess. § 12 (Fla. 2021) (codified at Fla. Stat. § 1006.205 (2021)) (permitting students to sue if they are “deprived of an academic opportunity” by being required to play sports with a transgender person). ↑
  5. See, e.g., S.B. 1327, 2022 Leg., Reg. Sess. (Cal. 2022) (codified at Cal. Bus. & Prof. Code § 22949.60 (Deering 2022) and Cal. Civ. Proc. Code § 1021.11 (Deering 2022)) (authorizing private enforcement suits against anyone who manufactures, distributes, or sells restricted firearms); Teaganne Finn, DeSantis Pushes Bill Targeting Critical Race Theory in Schools, NBC News (Dec. 15, 2021), https://www.nbcnews.com/politics/polit‌ics-news/desantis-pushes-bill-targeting-critical-race-theory-schools-n1286049 [https://perma‌.cc/2XDZ-UHP3] (“Republican Florida Gov. Ron DeSantis is pushing a new bill that would allow parents to sue school districts if their children are taught critical race theory in classrooms, which mirrors how Texas’ abortion ban is enforced.”); Laura Meckler, Teachers Union Sues New Hampshire Over Law Barring Certain Race Lessons, Wash. Post (Dec. 13, 2021), https://www.washingtonpost.com/education/2021/12/13/new-hampshire-critical-race-theory-lawsuit/ [https://perma.cc/N884-TTHK] (describing law passed in New Hampshire regarding the teaching of topics around race and its private right of action). For an overview of all CRT bills proposed and passed, see Peter Green, Teacher Anti-CRT Bills Coast to Coast: A State by State Guide, Forbes (Feb. 16, 2022), https://www.forbes.com/sites/pete‌rgreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=306100ec‌4ff6 [https://perma.cc/E5CZ-Y6BJ]. ↑
  6. See Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 529–30 (2021) (deciding whether pre-enforcement review of the statute’s constitutionality is permissible). ↑
  7. See infra notes 50, 67–69 and accompanying text. ↑
  8. See Whole Woman’s Health, 142 S. Ct. at 535–37. ↑
  9.  See infra note 70 and accompanying text; Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022). ↑
  10. See Jon D. Michaels & David L. Noll, Vigilante Federalism, Cornell L. Rev. (forthcoming 2023) (manuscript at 3–4, 18–22), https://papers.ssrn.com/sol3/papers.cfm?abstra​ct_id=​3915944 [https://perma.cc/J8ZY-V26M] [hereinafter Michaels & Noll, Vigilante Federalism] (advancing all of these arguments); see also Aziz Z. Huq, The Private Suppression of Constitutional Rights, 101 Tex. L. Rev. (forthcoming 2023) (manuscript at 51–54), https://ssrn.com/abstract=4072800 [https://perma.cc/CD2F-HQW8] (connecting S.B. 8 to the Fugitive Slave Act and a larger history of private suppression of constitutional rights that includes labor suppression and racially restrictive covenants); Jon Michaels & David Noll, We Are Becoming a Nation of Vigilantes, N.Y. Times (Sept. 4, 2021), https://www.nytimes.c​om/2021/09/04/opinion/texas-abortion-law.html [https://perma.cc/6UPG-PLB9] (“In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have . . . inverted private enforcement laws . . . to enable individuals to suppress the rights of their neighbors, classmates and colleagues.”); Laurence H. Tribe & Stephen I. Vladeck, Texas Tries to Upend the Legal System With Its Abortion Law, N.Y. Times, (July 19, 2021), https://www.nytimes.com/2021/07/19/opinion/texas-abortion-law-reward.html/ [https://perma.cc/G9EF-CZN4] (arguing that S.B. 8 is designed to evade federal review). A federal district court judge overseeing litigation surrounding S.B. 8 found that it violates constitutional due process. See Whole Woman’s Health, 141 S. Ct. at 2494. ↑
  11. See Michaels & Noll, Vigilante Federalism, supra note 10, at 28–31. ↑
  12. See infra Section II.A. ↑
  13. See infra Section II.A. ↑
  14.  See, e.g., Cass R. Sunstein, Article II Revisionism, 92 Mich. L. Rev. 131, 131 (1993) (overviewing and critiquing the argument that “certain grants of standing—to citizens, taxpayers, or others without an individuated injury—would compromise the vesting of executive power in the President and the grant of power to the President, rather than to courts or to citizens, to ‘take Care that the Laws be faithfully executed’”). ↑
  15. See infra Section II.A. ↑
  16. See Stephen B. Burbank, Sean Farhang & Herbert Kritzer, Private Enforcement, 17 Lewis & Clark L. Rev. 637, 666 (2013) (arguing that “private enforcement regimes contribute to participatory and democratic self-government”). ↑
  17.  See generally, e.g., Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 84–95 (2019) (drawing on Progressive Era thought to develop a democratic vision of administrative law and governance); Jerry L. Mashaw, Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government (2018) (articulating a vision of administrative governance as reasoned administration and showing how administrative law contributes to democratic legitimacy); K. Sabeel Rahman, Democracy Against Domination (2016) (drawing on Progressive Era democratic theory to develop a progressive vision of regulatory governance). ↑
  18. See infra note 167 and accompanying text. ↑
  19. See infra Part IV. ↑
  20. See infra Section IV.A. ↑
  21. See infra Section IV.B. ↑

  22. See infra notes 225–27 and accompanying text. ↑

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