Social Philosophy and Policy

Research Article

Two Conceptions of Civil Rights*

Richard A. Epsteina1

a1 Law, The University of Chicago

I. What Vintage of Civil Rights?

In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are nonetheless denied their civil rights if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue (and be sued) in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections did not guarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well.


* I should like to thank Ellyn Acker and Simon Steel for their valuable research assistance. I received valuable comments on an earlier edition of this paper at workshops held at McGill Law School in February 1990 and the University of Pennsylvania Law School in September 1990.