As the nation reflects on the fiftieth anniversaries of the various civil rights legislation of the 1960s' and considers the challenges that remain for fully addressing our history of racial discrimination, segregation, and suppression, we must begin with a very fundamental question: What is the harm that we are seeking to address, and how effectively do our current civil rights laws work towards achieving that goal? Given our collective success in addressing some of the most egregious intentional discrimination, as well as the intransigent, and evolving nature of institutional racism, it is time for a new Civil Rights Act that focuses on discriminatory impacts and effects. In light of the Court's restrictive interpretation of the Equal Protection Clause this new Civil Rights Act should look to another portion of the Fourteenth Amendment, the Privileges and Immunities Clause, which should be interpreted to provide the basis for guaranteeing the inclusion of African Americans into the full range of benefits of our community. While the United States Supreme Court undercut the Privileges and Immunities Clause just five years after the amendment was ratified, the new challenges we face in achieving racial justice demand its revitalization and reaffirmation.
Mark Dorosin, A Civil Rights Act for the 21st Century: The Privileges and Immunities Clause and a Constitutional Guarantee to Be Free from Discriminatory Impact, 6 WAKE Forest J. L. & POL'Y 35 (2016).