Groups, Equal Protection and Law

Issues in Legal Scholarship T HE O RIGINS AND FATE OF A NTISUBORDINATION T HEORY Article 8  Groups, Equal Protection and Law Robin West∗ ∗ Georgetown University, Issues in Legal Scholarship is one of The Journals of Legal Scholarship, produced by The Berkeley Electronic Press (bepress). Copyright c 2002 by the authors. All rights reserved. Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM Groups, Equal Protection and Law Robin West Abstract In retrospect, Owen Fiss’s classic article advocating an anti-subordinationist rather than antidiscriminationist interpretation of the Equal Protection Clause of the Fourteenth Amendment, was burdened by three missteps, all of them avoidable. First, Fiss accepted rather than resisted or reformed the Supreme Court’s “State Action” requirement, unduly compromising the reach of his alternative principle. Second, along with virturally the entire community of constitutional scholars of the 1970s, Fiss assumed that the clause would be enforced by the judiciary against errant legislation, rather than by Congress itself. He accordingly tied the phrase to jurisprudential assumptions and restraints appropriate to adjudicative, court-made and court-centered law that then undercut the logic of an anti-subordinationist (but not anti-discriminatory) interpretation of the Clause. And third, he failed to develop an understanding of the ”moral point” of law, of constitutionalism, and of equal protection, which would cleanly imply an anti-subordinationist rather than anti-discriminatory interpretation of the clause. The result is that against an undisturbed background constitutional and legal jurisprudence, even Fiss’s powerful articulation and defense of the anti-subordination principle remains an anomolous rather than natural interpretation of the clause. My article first identifies and then briefly attempts to correct these missteps. Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM West: Groups, Equal Protection and Law 1 Owen Fiss’s 1976 diagnosis of the ills of the Court’s treatment of the Equal Protection Clause 1 -- that its reliance on an “antidiscrimination” mediating principle would hamper rather than further the attainment of real equality – was prescient, but his proposed cure – that the Court should adopt a mediating principle that would target the disadvantaging of groups rather than the unfair treatment of individuals – has proven unpopular, at least among jurists. The Supreme Court has turned its back emphatically on the “group disadvantaging” principle that Fiss endorsed, and has embraced the antidiscrimination principle he criticized.2 It has, furthermore, endorsed the very drawbacks of that principle identified by Fiss, clearly regarding them as virtues rather than vices: whereas Fiss worried that the anti- discrimination principle seemed to imply the unconstitutionality of affirmative action, and concluded that there must therefore be something wrong with the antidiscrimination principle, the Court has held fast to the antidiscrimination principle, seemingly accepting its anti-affirmative action implications. Lower courts have been no more enamored of Fiss’s proposed reorientation of equality law. Fiss’s mediating principle did, of course, prove to be extremely influential among academic commentators:Groups and the Equal Protection Clause argues for a vision of Equality and Equal Protection law which eventually came to define the founding generation of critical race scholarship.3 But the courts have been unwilling to embrace a “group disadvantage,” rather than “individual unfairness,” approach to Equal Protection. What went wrong? Why didn’t the courts make the shift that Fiss urged? Possibly, the proposal lacks merit: maybe Fiss is wrong and the courts right to continue to understand the Equal Protection Clause as protecting, basically, an individual’s right to not be unfairly or irrationally categorized. I think, though, that there is more to it than that. Even if we assume that Fiss is right that the Clause should be mediated by a principle centered on group disadvantage rather than individual unfairness, I think there are three problems with the way that he (and others) argued for that principle. None goes directly to the merits of the proposal, but all, I believe, have nevertheless hampered its evolution. In this comment, I want to just outline what I think were three of the problems with Fiss’s initial articulation of this important principle. The first problem, I suggest, concerns his conception of the limits of the group disadvantaging principle, which in turn led him to a mistaken claim about both the grounds for the principle, and the direction the doctrine should take. The second problem is institutional and political: nowhere in his piece did Fiss countenance the possibility that the Court would take a more regressive position on race matters than the elective branches. The third mistake, I will argue, is jurisprudential: Fiss missed the heart of the antidiscrimination’s appeal because he failed to appreciate its jurisprudential foundation, and similarly failed to tie his own proposed principle to a deeper understanding of the 1 2 . Fiss, Groups and the Equal Protection Clause, Vol 5, No. 2 Philosophy and Public Affairs, 107-77. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) 3 . See, e.g., Critical Race Theory: The Key Writings That Formed the Movement (Kimberle Williams Crenshaw, ed., 1995), Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988), Alan D. Freeman, Antidiscrimination Law: A Critical Review, in The Politics of Law 96 (David Kairys ed., 1982). Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM Issues in Legal ScholarshipSymposium: Antisubordination Theory [2002], Article 8 2 point of law, and of constitutional law in particular. The three points are interrelated, but for ease of exposition, I will take them up in that order. The quasi-logical mistake that Fiss (as well as countless others) made, I think, is this: in his article, Fiss accepted and endorsed the argument that the Equal Protection Clause, because it clearly is directed at states, rather than private actors, is therefore directed at state action, rather than state inaction. Thus, Fiss briefly considered, but then he quickly dismissed, the suggestion made some time ago by Charles Black, among others, that the Equal Protection Clause, after all, by its textual language, explicitly targets not state action, but rather, state inaction.4 “No state shall deny to any person the equal protection of the law.” This utterance seemingly forbids the states from failing to take, or refusing to take, or neglecting to take, whatever action is required (such as passing legislation) that otherwise would equally protect citizens from some unspecified danger. Fiss interestingly conceded Black’s textual point, but then quickly went on to argue that the conclusion that seems to follow from it—that Courts ought be at least equally worried that state inaction, no less than state action, might pose possible denials of equal protection - can’t be right, because to view state inaction as the proper target of the equal protection clause would effectively point the clause against private, rather than state action. If state inaction in the face of egregious private conduct, Fiss argued, is the object of constitutional sanction, then in effect that private conduct, and hence private actors, become the target of the clause, and that just can’t be: the clause, like the constitution as a whole, is directed against states, not private parties. 5 I think Fiss moved to hastily here. To point the clause and the courts toward state inaction rather than state action is not at all the same thing as pointing them toward private rather than state conduct, or private actors rather than state officials. It is indeed the case that the clause is directed at states rather than private parties, but it just doesn’t follow from that that it is state action, rather than state inaction, which is its primary target. A state’s failure to criminalize private violence perpetrated by one group of citizens against another group of citizens (such as violence visited upon freed blacks, for example, in the wake of the civil war, or violence inflicted in patriarchal families upon spouses, or children) might well be an example, even a paradigmatic example, of a state’s denial of equal protection; likewise its failure to enforce criminal laws forbidding such conduct or its failure to prosecute those who breach them. This doesn’t render the private violent conduct the trigger or the target of the equal protection clause; rather, the trigger of the equal protection clause is the state’s failure to do anything about the private conduct. The focus remains entirely on the state’s response, or non-response, to the private conduct. There is no reason—logical, doctrinal, or historical—to conflate the possible constitutional problem of state inaction – a state’s failure to pass, enforce, or prosecute under, laws that would protect citizens, and protect them equally, against various dangers – with the decidedly civil problem of private misconduct, violent or otherwise. This unnecessary conflation has the consequence (among others) of completely shielding the moral and political problem of egregious state inaction, or neglect, from constitutional scrutiny. The consequences, in turn, of that “shielding,” I think, are 4 5 Fiss, at 168-69. Id. Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM West: Groups, Equal Protection and Law 3 momentous. First, for those who care about historical fidelity and constitutional integrity, it leads us away from what was very likely a part of the intended core target of the Equal Protection Clause – the failure of states to accord to freed blacks the equal protection of laws prohibiting private violence against them. That vision of the meaning of “equal protection,” and the vision of equality it implies and on which it rests, thereby goes not just unrealized, but also untapped: we are deprived of the experience of a century long judicial development of the meaning of the clause from that starting point – a state’s failure to protect its citizens—rather than from the quite different point of departure – irrational legislation – which the modern court assumes to be the nub of the phrase. But second, and just as important, we are deprived of the opportunity to understand and develop what might be the “penumbral” effects of the Equal Protection Clause, were it to be understood as one essentially forbidding state inaction in the face of unacceptable private conduct, rather than irrational state action. It seems clear enough that, if viewed as a constitutional mandate against state inaction, the clause can readily be understood to forbid states that fail to criminalize or police against at least violent forms of private oppression. But if so, then might it not also sensibly be read as forbidding states’ failure to police against or in some way rectify the grotesque inequalities brought on by other less “violent” forms of private conduct? And if that is a sensible extension, then it seems that a state sponsored affirmative action plan, designed to remedy the all too foreseeable consequences of slavery, Jim Crow, and then both intentional and negligent private racial subordination, would readily fall into the “penumbra” of the equal protection clause. Similarly, legislation aimed at alleviating the harshest impact of private conduct in the economic sphere might be viewed as within a justified “penumbra” of the Equal Protection Clause – again, if that Clause can be understood as intended to protect citizens, and equally, with the civilizing arm of the law, against forms of private oppression. Now, how does this relate to the “group disadvantaging” mediating principle? Well, a development of the “state inaction” prong of the Equal Protection Clause, even just in the literature (rather than the doctrine), might have strengthened the coherence of Fiss’s group disadvantage principle, as well as, perhaps, its chances of eventual implementation. Much of the disadvantage to groups that concerns Fiss, and the rest of us, occurs as a result of state inaction, not as a result of state irrationality: it is often the unduly minimal state, not the unduly irrational state, that is the cause of the unaddressed wrongful group disadvantage caused by social circumstances, and it is thus the unduly minimal state, rather than the unduly irrational state, that might best be viewed as the target of the equal protection clause. The failure of the state to take actions that alleviate the disadvantage caused to poor women and their children by virtue of the nonexistence of publicly funded child care, or the failure of states to enact appropriately progressive taxation schemes, or to enforce laws against criminal violence, or to enact laws against hate crimes, or to address the consequences of private sphere racial discrimination, all appear as logical and straightforward targets of Equal Protection challenges, rather than as simply the inevitable consequence of private actions and a passive state, if we view state inaction rather than state action (or individual action) as the nub of the phrase. When a state does take action to address private sphere oppression, through something like state-sponsored affirmative action, it would certainly strengthen Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM Issues in Legal ScholarshipSymposium: Antisubordination Theory [2002], Article 8 4 the case for its constitutionality, if we had a better sense of the possible unconstitutionality of its failure to act at all. By conceding that state inaction is constitutionally neutral, Fiss simply unnecessarily lowers the baseline of constitutional scrutiny – and does so, it seems to me, in a way that is unwarranted by our history, both constitutional and otherwise. Second, the political, or political-constitutional mistake. Fiss assumed throughout his article that the courts, and specifically the Supreme Court, constitute the audience of the Equal Protection Clause, and that it is therefore fitting that the Clause be interpreted in such a manner as to fit with the Court’s, and courts’, jurisprudential and institutional limitations.6 He also seemingly assumes, although not explicitly, that the Court is both institutionally and jurisprudentially committed to protecting electoral minorities against the oppressive tendencies of legislatures, who by design are more inclined to represent the will of majorities. It follows then that the Court will and should view itself as committed to the task of protecting minorities, racial and otherwise, against both oppressive, group-disadvantaging majoritarian behavior and irrational majoritarian behavior. As it happens, the Court has embraced the wrong mediating principle in achieving that goal, leading it to focus on irrationality rather than group disadvantage. But that can be corrected, once the mistake is properly explained. All else about this setup remains unchanged: the equal protection clause, under either the Fissian or traditional reading, directs the Court to police against legislative misconduct enacted by and for overreaching majorities of some sort or another. The only question is what sort of misconduct, and it is that question which is then answered by the mediating principle Fiss identifies. But why believe any of this? The text of the Constitution doesn’t warrant it: the Fourteenth Amendment’s Section Five directs Congress, not the Court, to police the substantive provisions, and take action in the event they are not met. If we take the language of Section Five seriously, the audience of the Fourteenth Amendment seems to be Congress, not courts. There is likewise no real politik reason to think that an unelected Court will be more solicitous of oppressed minorities than elected legislatures, solely by virtue of sharing with the disadvantaged group the quality of not representing the majority will. Military dictators and royal monarchs aren’t elected either; this has not, historically, made them solicitous of the needs and interests of minority groups. There is no obvious reason to think that an unelected Court will be more solicitous than elected legislatures of the disadvantages felt by even more amorphous groups, such as the poor, or the underprivileged, or ethnic subgroups, or women, or children, all of whom may, from time to time or all of the time, constitute considerably more of the population than a small minority. There is just no reason, beyond an increasingly irrational faith based almost exclusively on the Brown decision and the particular Court that decided it, to think that the Supreme Court is the institutional body attitudinally inclined to correct for the oppressive tendencies of self-serving majorities. The significance of this mistake is not simply that Fiss missed the opportunity to address the institution that may in fact be more sympathetically aligned with the moral and political principle he’s advocating than the institution he seems to be addressing. 6 . Only at the end of his piece does he briefly mention the obligation of other actors to enforce the equal protection clause. Fiss, at 175-76. Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM West: Groups, Equal Protection and Law 5 Rather, by accepting the traditional understanding of the Court as the enforcer of Equal Protection norms, and then insisting on a “group disadvantage” rather than “individual fairness” principle to mediate its meaning, Fiss in fact put the phrase on an unstable and possibly internally contradictory footing. Not just this Court, but likely any court, will be attracted to an individual fairness, “treat likes alike” understanding of the Equal Protection Clause, rather than a group disadvantaging understanding. They will be so, furthermore, not because of some inexplicable, will-o’-the-wisp political conservatism, but rather, for jurisprudential reasons that go to the heart of judicial ideals. Let me explain why I believe that to be so. Courts quite generally are jurisprudentially committed to the ethical end of treating individuals fairly, and doing so, precisely, by “treating likes alike.” This is, for many and perhaps all judges, the very “point” of law, to use Ronald Dworkin’s helpful phrase, or at least the very point of adjudicative law: whatever else courts do when deciding cases, they must, somehow, treat “like cases alike.” The “individual fairness” approach to equal protection, thus, has the not insignificant strength of aligning the meaning of the phrase with what can fairly be called the moral point of adjudicative law itself: to treat individuals fairly by “treating likes alike.” And, the moral ideal of the Equal Protection Clause under virtually anyone's interpretive principle -- equality -- is likewise, central to the very idea of law itself. Put these principles together syllogistically, and the conclusion is a virtual certainty: the moral "point" of both "law" quite generally and the Equal Protection Clause in particular is, in substantial part, some understanding of "equality"; the moral "point" of adjudicative law is to "treat likes alike"; ergo, what equality requires, in turn, is that judges decide equality cases in such a way as to police a requirement that legislation treats likes alike, likewise. Thus, the anti-discrimination principle holds a substantial jurisprudential -- and not just institutional -- advantage over Fiss’s “group disadvantage” principle. There is, simply, a very “tight fit” between, on the one hand, the traditional, anti-discrimination understanding of equal protection, and on the other, both judicial-institutional self understanding—“treating likes alike” is what judges, institutionally, are required to do— and jurisprudential aspiration—“treating likes alike” is an ethical idea at the very heart of the idea of adjudicative law. The “anti-discrimination” mediating principle at the heart of the traditional understanding of the Equal Protection Clause seems so natural, then, not because it appeals to some innate judicial conservatism, but because it brings together an “idea” about what equality requires, with both the very “idea” of law itself, and with the workaday institutional identity of judges. By contrast, there is no such “tight fit”—in fact there is no fit at all—between the “group disadvantage” understanding of equal protection, and either jurisprudential conceptions of law, shared understandings of the Constitution, or judicial role and function, let alone all three. It is, consequently, difficult—maybe impossible— to retain an understanding of the Equal Protection Clause and of equality itself as being somehow central to the idea of law, and at the same time interpret that Clause as being in line with the group disadvantage principle. Again --- Courts routinely try to treat like cases alike and hence accord individuals fair treatment—thus the natural fit of the antidiscrimination principle. But courts don’t routinely—or ever—strive to “not disadvantage groups” (or advantage them). Rather, every judicial action taken toward Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM 6 Issues in Legal ScholarshipSymposium: Antisubordination Theory [2002], Article 8 achieving individual fairness, albeit with full or partial awareness that the collateral damage of judicial action might be that someone or some group is being disadvantaged. “Don’t disadvantage groups,” as a principle of law, does not enter the judicial conscience. Don’t treat likes differently or unlikes alike, by contrast, is right at the heart of it. Fiss is of course aware of the awkwardness of his principle, understood as a mediating principle for courts to use when enforcing equal protection law, and seeks to mitigate that awkwardness in various ways, primarily by accepting limitations on the principle itself. But whether or not these limits work, in doctrine or logic, they deter him from what might have been a more fruitful inquiry, and that is whether or not it is possible to articulate a general principle of law, and hence of constitutional law, that might imply the group disadvantage principle, in a way that compares favorably with the “tight fit” that currently exists between the anti-discrimination principle, judicial function and jurisprudential aspiration. I think it is possible, but only if—and it’s a big if—we understand the Clause as directed at legislatures rather than courts. Courts may be charged with the moral work of treating individuals fairly by “treating likes alike” under pre-existing law, but legislatures, after all, are not. Legislatures are charged with the moral work of passing laws that will protect citizens against various sorts of dangers, including the dangers posed them by other private parties. In fact, legislatures are charged with duties that track quite closely the sorts of obligations that Fiss's "group disadvantaging" principle seems to suggest are central to law and equality both. Legislatures, that is, unlike courts, do, ideally, work toward the end of passing laws that will alleviate “group disadvantage.” This is not just what happens by virtue of interest group lobbying, rather, this is the ideal itself. What legislatures are supposed to do is enhance the wellbeing of as large a “group” as possible, and alleviate the effects of disadvantage. And, they ought to do that—alleviate group disadvantage—equally. The Equal Protection Clause, mediated by a principle of “preventing group disadvantage,” can be understood in a very straightforward way as constitutionalizing—and hence elevating—the obligation of legislatures to do so. This, then, brings me to the third mistake I see in Fiss’s early articulation of the group disadvantage principle. “Equality” is a core commitment, and perhaps the core commitment, of law and of constitutional law both. Fiss provocatively defined constitutional equality as requiring a commitment to address group disadvantage. What he failed to do, though, is spell out the connection between that conception of equality, and any jurisprudential account of law and of constitutional law that would require or imply it. This is a real omission: equality is indeed central to the point of law. If we are to switch mediating principles in achieving it, it must be shown how the new one, no less than the old one, connects with some account of both law and constitutional law’s “moral point.” Fiss’s alternative mediating principle, in other words, requires, to use a now clicheed term, a jurisprudential paradigm shift regarding the "moral point" of law and constitutional law both. For all he did do in his great piece, however, he failed to provide one. Let me quickly suggest how he might have filled in that gap. First, on law. What is the "moral point" of law? Can we articulate a quite general point of the enterprise, that is aligned with, rather than in tension with, the group disadvantage understanding of equality? Perhaps: assume, for sake of argument, that the “moral Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM West: Groups, Equal Protection and Law 7 point” of “law,” including “higher law” writ large, is to reform civil society in such a way as to better protect persons against various forms of privation, oppression, and wrongful conduct they would otherwise suffer in an unregulated private sphere. Let us assume that that forward looking, change-creating ideal is the point of law -- the reason we're better off with it than without it —rather than the point of law being to enforce existing rules that maintain continuity with the past, and treat individuals fairly within them. Second, on constitutional law. Assume for sake of argument that the "moral point" of constitutional law is to guide legislative law-making bodies in its efforts to do just that— rather than the point of that body of law being to direct judges to constrain legislatures from overreaching into the private sphere or from breaching norms of individual fairness. Now it seems to me that Fiss’s notion of equality and equal protection as mediated by a principle of “group disadvantage” fits quite easily within this alternative "jurisprudential paradigm": "protection" requires the state to protect citizens against various froms of wrongful privation, and "equality" requires that legislatures pass laws that will protect persons and groups from wrongful oppression, violence, and subordination equally. These jurisprudential assumptions, though, are as far removed from the philosophical assumptions that now underlie our dominant conceptions of law and constitutional law both, as is Fiss’s generous account of equal protection from that currently embraced by the Court. We don't currently, for the most part, think of law as being essentially about changing the status quo so as to prevent undue privation or oppression -- rather, ever since Fuller's post war jurisprudence, we tend to think of the essential point of law as being assuring continuity with the past and fair treatment of individuals, by subjecting their behavior to general and known legal rules. And, we tend to think of the "point" of constitutional law, not as a set of principles to guide legislative deliberation in the project of creating just legislation that betters civil society; but rather, as a body of law that constrains legislators from behaving irrationally or overly paternalistically. We think of "law" as being the province of reasonable courts restraining irrational states and individuals both, and constitutional law as being a subset of those rules; we don't tend to think of law as being the product of legislative deliberation aimed at improving civil society, and constitutional law as being an interactive subset of, and guidebook toward, that project. Within this dominant paradigm, again, Fiss's mediating principle of equal protection seems like an anomoly. Within the alternative paradigm, it doesn't look so anomolous. But that surely damns it with faint praise or worse: the "alternative, non-dominant paradigm," after all, is just that. And yet, there is nothing wildly implausible about either of the jurisprudential or constitutional assumptions spelt out above. The first—that law is at its core about changing existing social hierarchies so as to better protect people against violence, oppression or privation—is nothing but straightforward Hobbesian dogma. In fact, it is the (often forgotten) Hobbesian heart of liberalism: before we can impose Lockean constraints on the state in the name of individual freedom, we must first have a Hobbesian state to assure individual security from violence. Legal theorists from Hobbes to Rawls have been clear that liberalism, in addition to requiring constraints on states that might hamper individual liberties, also requires an active and activist state that protects its citizens against undue disadvantage, particularly those privations or disadvantages that are caused by private sphere aggressions. There's nothing illiberal about re-asserting the Hobbesian case for an assertive state. The second assumption—that Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM Issues in Legal ScholarshipSymposium: Antisubordination Theory [2002], Article 8 8 the Constitution is aimed at Congress and should guide Congressional aspiration, and not just addressed to Courts in their policing role -- is likewise not unknown to the text of the document, as mentioned above, but also, is not unknown to either our history, or our current aspirations. No less a rights advocate and American patriot than Thomas Paine, for example, spoke of “rights” as including the “right” to be protected against poverty and private violence, and of “constitutional law” as a law that should be aimed toward guide the conscience of state and federal legislators.7 More generally, across two centuries, political movements from labor movements to women’s rights to civil rights have invoked the language and history of the constitution to urge not just legislative restraint or rationality, but also legislative activism and egalitarian intervention into various spheres dubbed the “private.” And, a growing body of contemporary constitutional law scholarship argues convincingly that it would not be a departure from either constitutional text or history to view the Constitution and at least some of its provisions as directed to the state actors responsible for making law, rather than to the state actors responsible for reining in unwarranted political interventions into the private.8 It is not all that much of an extraordinary departure from either classical jurisprudence or American history to think of law as that which emanates from the state and protects people against privations and aggression visited upon them by private actors, and of constitutional law as that which guides the legislative hand when so doing, rather than as that which restricts the state and constrains politics, protecting people against overreaching state authority. Again, within this alternative constellation of jurispruduential and institutional premises—law as a means of changing existing social hierarchy, and the Constitution addressed to legislatures so as to guide their attempt to do so -- Owen Fiss’s “group disadvantaging” mediating principle for the Equal Protection Clause “fits” quite nicely. If we think of "law" as being fundamentally about protecting people against private aggression, and if we think of "constitutional law" as being about better directing legislatures in their attempt to do so, then it just is not so anomalous to also think of equality and equality law as concerned with the relative disadvantages and advantages bestowed on various groups by virtue of private configurations of power and resources, and of the equal protection clause as consisting of, at heart, a directive to lawmakers to do something about them. Conclusion Owen Fiss wrote an extraordinary article twenty-five years ago about the meaning of equality. But, like virtually all constitutional law scholars of that time, he wrote his article as an open letter to the Supreme Court. The Court—the interpreter of “law”— should enforce equal protection norms against Congress—the site of “politics”—Fiss’s letter implicitly suggests, just as it has been doing all along. But—it should embrace 7 8 . Paine, Rights of Man II, ch. 5, in Paine, Collected Writings (Eric Foner, editor) See, e.g., Mark Tushnet, Taking the Constitution Away From the Courts (2000). Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM West: Groups, Equal Protection and Law 9 this substantive mediating principle, rather than that formal one, as its guide to working out the meaning of equality when so doing. The problem is that the substantive mediating principle for which Fiss argued runs against the grain of the institutional and jurisprudential self-understanding of this, and perhaps any, adjudicative court. It doesn’t follow, however, from the ill fit between adjudicative jurisprudence and Fiss’s notion of equality, for those who find Fiss’s mediating principle compelling, that we jettison the project of integrating this appealing conception of equality to law and legal aspirations. There may well be understandings of law, and of equality law, and of constitutional law, that are fully compatible with a “group disadvantaging” approach to equal protection, even if they will not receive elucidation of enforcement through courts. It is not only courts who make, interpret, and deepen law through layered elaboration of its basic principles. Legislators too, presumably, abide by the Constitution, care about equality, view themselves as obligated to promote it, and are or could be responsive to arguments of the sort put forward in journals like Philosophy and Public Affairs. More specifically, Congress not only is bound by law, including constitutional law, but is also specifically directed by that document to enforce the provisions of the Fourteenth Amendment. To enforce a text, obviously, requires that there first be an interpreted text to enforce—a Congress charged with enforcement must be granted the leeway to also interpret. So, my bottom line suggestion regarding Fiss’s wonderful article, is that his argument for a “group disadvantaging” principle should have been addressed to Congress, rather than the Court, and for jurisprudential, not just political reasons. For a Court, law is a means of maintaining continuity with the past and individual fairness within existing rules, and higher law, including constitutional law, is something to impose upon—so as to cabin—legislators and politics overly inclined to precipitous change. For Congress, by contrast, law is a tool to use so as to change the status quo, and higher law is a set of moral, political and constitutional directives that guides them when doing so. For a Court, constitutional law constrains Congress from acting, in part, in the name of fairness, in an irrational way toward groups and individuals. For Congress, by contrast, the Constitution guides legislative deliberation in a way that better directs that body’s attention toward those social divisions and inequities that need rectification. For the Court, the Fourteenth Amendment’s equality provisions direct them to strike legislative action that unfairly discriminates against irrationally categorized individuals. For Congress, perhaps, if it ever took its Section Five role seriously, the Fourteenth Amendment’s equality provisions could well have a different meaning—it might be read as a prohibition of those social and cultural hierarchies that have such disturbing, unequal, and damaging consequences that they could and should be remedied by law. Within this set of jurisprudential premises—law as a tool for change, rather than a bridge to the past; the Constitution as a guide to legislative, positive action, rather than a constraint on states, and equality as a matter of socially created inequities rather than legally created individual unfairness—Fiss’s group disadvantage principle is not anomalous. Rather, it is at the very heart of our constitutional, if legislative, aspirations. Brought to you by | University of Georgia Libraries Authenticated Download Date | 6/1/15 7:15 PM