Epstein on the Enforcement of Civil Rights Laws

Caution! Attorney General Holder
Richard A. Epstein
September 8, 2009

Recently, Attorney General Eric Holder has signaled on several occasions that the Department of Justice intends to reverse the policies of the Bush administration by beginning a new era with more vigorous enforcement of the civil rights laws. As the DOJ seeks to hire more lawyers in its Civil Rights Division it needs to chart out a precise course of action--but how?

Let's go back to first principles: Should the U.S. have civil rights laws at all? In some cases, the right answer is an emphatic "yes." It is a travesty of justice to exclude eligible voters from the polls because of their race, sex or national origin.

But today we face the March of Dimes problem of what to do now that this battle has been largely won. The follow-on disputes are much more vexing. Should the DOJ attack the more stringent state requirements such as presenting drivers' licenses to establish eligibility? Given the state interest in fraud prevention, Justice Stevens--take note--denied a facial challenge against the Indiana motor-voter law in Crawford v. Marion County Election Board. He has a point. There are weighty interests on both sides. The balance of advantage is too close to call for the Holder DOJ to treat this issue as a high priority.

Richard A. Epstein