I’ll have more to say about Samuel Bagenstos’s brilliant essay about legal arguments against civil rights have transformed across American history. To start, though, I’d like to highlight this, about how the argument that requiring public accommodations to treat customers on equal terms is the equivalent of slavery has long been used by white supremacists:
Other times, the arguments against Title II were framed in terms of the Thirteenth Amendment. The argument was not the one we might have expected from the Civil Rights Cases—that discrimination in public accommodations was not a badge and incident of slavery that Congress had Thirteenth Amendment power to target. Instead, it was the rather stunning argument that prohibiting businesses from discriminating on the basis of race conscripted the business owners into involuntary servitude. Strom Thurmond made this argument in his separate views attached to the Senate Report on the proposed Civil Rights Act. Senator Thurmond described the Thirteenth Amendment as “an insurmountable constitutional barrier” to Title II, because, by forcing businesses to serve customers their owners desired not to, the bill would impose “involuntary servitude” on them. As Christopher Schmidt explains, “in the early 1960s, this unusual Thirteenth Amendment argument figured prominently in the debate over the appropriate line between antidiscrimination policy and personal liberties.”
Terrible reactionary arguments never die; they just get recycled to justify different forms of illegitimate privilege.