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Civil rights returned to dominate the nation's domestic agenda with Brown v. Board of Education. Although not directly involved in that case, the 1866 Act furnished part of the background for this dramatic expansion of constitutional prohibitions against racial discrimination. In particular, the act offers an alternative basis for the decision in the companion case to Brown, Bolling v. Sharpe. That opinion applied to the federal government under the Fifth Amendment the same principles against racial discrimination applicable to the states under the Fourteenth Amendment. This result, although politically compelled, involved awkward reasoning that read the later amendment back into the earlier one, a step that can more easily be accommodated by the broad coverage of the 1866 Act. The scope of that coverage figured in another decision at the end of the Civil Rights Era, Jones v. Alfred H. Mayer Co., which interpreted the act to prohibit private discrimination. This result also had political support, in the form of modern civil rights legislation enacted under the Commerce Clause, but it served to solidify prohibitions against racial discrimination without regard to the intricacies of the state action doctrine. In doing so, it also revived the 1866 Act as a source of modern civil rights claims, chiefly in the field of employment discrimination law.

The revival of the 1866 Act in Jones v. Alfred H. Mayer Co. had momentous implications. In theory, it made the whole range of rights protected by the act applicable to private discrimination, while in practice, it resulted in the deployment of common law remedies and in particular, damages to claims for employment discrimination. This seemingly technical innovation brought the litigation of these claims much closer to ordinary tort claims, with large monetary awards available to plaintiffs for the first time and compensation of their attorneys more closely resembling a contingent fee. The Supreme Court quickly realized the implications of the decision in Jones and sought to restrict the scope of the statute in various ways. Congress, however, stepped in at this point to confirm the broad scope of the act and to extend the remedy for damages to other claims of discrimination, based on religion, sex, and disability. In this manner, the Civil Rights Act of 1991 brought up to date the nation's earliest civil rights act.

The Civil Rights Cases struck down the Civil Rights Act of 1875 which had extended protection against racial discrimination to certain private businesses including common carriers, inns, restaurants and places of public amusement. The Court held that the text of Fourteenth Amendment was addressed to state action and as such Congress could not reach private conduct pursuant to its section five enforcement powers. Justice Harlan wrote a powerful dissent. The decision, which was well received by the public, was a major setback for civil rights enforcement but was probably a correct interpretation of the Fourteenth Amendment The chapter discusses the impact of the decision and suggests that it was re-enforced if not dictated by the public backlash against the recently ended Reconstruction era.

Chapter Seven, “The Duty to Treat Others as Equals: Who Stands Under It?,” focuses on the obligations of governments and private individuals to treat people as equals. The author considers several arguments for the claim that governments owe those whom they govern a duty to treat them as equals. The author then turns to the duties of individuals. The author argues that we do not acquire a duty to treat others as equals only when we occupy certain institutional roles. Rather, we always have an obligation to treat others as equals, in the specific senses discussed in this book: we must not unfairly subordinate some to others, or infringe their right to a particular deliberative freedom, or deny them access to a basic good when it is in our power to give it to them. The author argues that this obligation is not too demanding, and distinguishes it from the duty to give equal concern to everyone’s interests in one’s deliberations. The author tries to show that this duty is consistent with recognizing the importance of a variety of individual freedoms, and that there are often good reasons for the state not to use anti-discrimination law to regulate decisions made in more personal contexts. The author also explains why, nevertheless, the state has an obligation to help us fulfil our obligations in these more personal context, by creating the conditions under which we can relate to others as equals.