Social Philosophy and Policy

Research Article

Change and Continuity in the Concept of Civil Rights: Thurgood Marshall and Affirmative Action*

Mark Tushneta1

a1 Law, Georgetown University

In analyzing the development of the concept of civil rights since the adoption of the Fourteenth Amendment, two historical accounts seem available. According to the first account, the concept initially encompassed a relatively limited set of rights, associated with the ability of all citizens to engage in the productive activities of the economy and avail themselves of the protection of the legal system. Then the concept gradually expanded to include what had initially been thought of as political rights, such as the right to vote, and then to identify the entire set of rights to equal treatment in all domains of life outside a relatively narrowly-defined private sphere. According to the second account, the concept of civil rights was fuzzy from the outset; although political actors spoke as if they had a clear understanding of distinctions among civil, political, and social rights, close examination of their language shows that the distinctions tended to collapse under slight pressure.


* This article is drawn from a chapter of a forthcoming biography of Justice Thurgood Marshall, and is published here with the permission of that book's publisher, Basic Books. I would like to thank Ellen Frankel Paul and the participants at the conference at which the article was presented for their comments.