We are Becoming a Nation of VigilantesRoundup
tags: abortion, Texas, vigilantism
Mr. Michaels and Mr. Noll, two law professors, have been tracking private enforcement laws like SB 8 — and their impact on equality and democracy in America.
In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have repurposed an old tool to new and cruel effect. They’ve inverted private enforcement laws — marshaled over the years to discipline fraudulent government contractors, racist or sexist bosses and toxic polluters — to enable individuals to suppress the rights of their neighbors, classmates and colleagues. Most prominent among these new laws is SB 8, Texas’s heartbeat bill. The law bans abortions six weeks into a pregnancy, lets anyone bring a lawsuit against medical practitioners who violate the ban and provides cash bounties of at least $10,000 (plus legal fees and costs) to encourage such litigation.
SB 8 captured the nation’s attention this week when the Supreme Court refused to block its implementation, precisely because, as Justice Sonia Sotomayor and the other dissenting justices noted, it is enforced by private individuals, not the state.
Gutting Roe v. Wade, especially in this backdoor fashion, is a staggering blow to equality in America. And in fact, the president of Florida’s State Senate just promised to introduce a copycat bill in the coming legislative session. But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams.
Additional bills are in the works across several jurisdictions authorizing parents to sue schools if teachers or outside speakers mention the principles of critical race theory. And there’s every reason to expect that red states will push private enforcement further — to election monitoring and perhaps even immigration enforcement. It’s only a matter of time before these states decide to empower individuals to bring suits for injunctive relief and damages against people who engage in activities like handing out water to minority voters waiting in hourslong lines to vote. States could similarly deputize anyone to sue employers or landlords of undocumented people, pushing Dreamers who are currently protected by DACA out of work and into the streets.
This reassignment lacks any foundation in our constitutional traditions (except those built on theories of subordination, such as Jim Crow). Instead, it’s the product of what might be labeled populist outrage discourse — everything from Tucker Carlson monologues to the irate grocery store customers who assert their inalienable “right” to shop maskless, even if doing so violates the wishes of the proprietor and endangers those around them.
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