Difference and Constitutional Equality

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DIFFERENCE AND CONSTITUTIONAL EQUALITY

Central to our liberal tradition is the conviction that we share a universal human nature, from which follows our common entitlement, or right, to be treated with respect and dignity. Central to our commitment to the rule of law, and to our constitutional scheme of governance, is the conviction that we are all entitled to legal equality, or equal treatment under the law. And yet our individual identity is clearly formed, in part, by traits that we share with some but not others. Women and men have different biological roles and capacities in reproduction, for example, and African Americans and whites have profoundly different political and cultural histories. Furthermore, all legislation, from the simplest criminal statute to the highest constitutional norm, virtually by definition, categorizes citizens, treating some quite differently from others. Thus, we claim and aspire to a universality belied by our differentiating traits, and we are committed to legal equality in the face of the brute inequalities that law itself creates. How, then, to justify law, and the differences it creates and mirrors among us?

In the mid-and late-twentieth century, the Supreme Court, under the sweeping language of the fourteenth amendment guarantee of equal protection of the laws, developed a rich body of law and principle in response to these central paradoxes. Basically, the Court now reads the mandate of "equal protection of the laws" as imposing upon state and federal legislation a requirement of rationality. If the lines drawn by a law between different groups of people reflect a real difference between them, then the law is rational and upheld; if not, it constitutes a failure of equal protection and might be struck. A law imposing a minimum age on drivers, for example, is not a denial of equal protection because the line it draws is basically rational: the legally created difference between sixteen and seventeen year-olds does reflect, albeit only crudely, a real relation between the driving abilities and maturity of older and younger teenagers. Some legislative categories, however, are based on inherently suspect classifications, some so suspect as to create a virtually insurmountable presumption against their constitutionality. Racial categories are of this sort. Racially segregatory laws simply do not reflect any real difference between citizens. They are presumptively irrational, and consequently unconstitutional.

This deceptively simple formula—equality requires rationality—has the virtue of underscoring the coherence of our basic liberal and legalistic ideals. The prohibition on irrational legal categories and the insistence that racial categories are presumptively irrational not only restate our commitment to universality while permitting the categorization of citizens necessary to sensible legislation, but also remind us of the deeply divisive consequences of the historically disastrous belief, held by most whites through most of this country's history, in black difference and inferiority. The "folding" of the liberal commitment to universalism, the legalistic ideal of equal treatment, and the clear understanding that legislation premised on a belief in black difference and inferiority violates the equal protection clause of the Fourteenth Amendment protects us against the danger of repeating the most horrific chapter of our history. In spite of its strengths, however, and its breathtakingly elegant restatement of liberal ideals, this deceptively simple understanding of the meaning of equal protection has produced tremendous dissension and division within the Supreme Court, and has triggered the production of a vast and exceedingly complex body of doctrine. The core problems with the Court's formulaic solution—that equality requires rationality, that rationality requires that legislative distinctions track real differences, and that racial differences are simply not real, but rather a product of bigoted perception—are threefold.

First, not all racial differences are a problem of or created by bigoted perception, and not all legislation that tracks or targets those differences is necessarily malign. That the belief in black inferiority necessarily rests on a belief in black difference certainly does not imply that all claims of racial difference rest on a racist and false commitment to black inferiority or white superiority. Rather, some differences are real and in need of redress: differences in average income levels, educational achievement, and infant mortality rates between otherwise comparable black and white communities are examples. Noting these differences, and legislating in a way meant to redress them, may be good or bad policy, but it is clearly not the same thing, and not the same evil, as legislatively segregating the races because of the presumed inferiority of African Americans. Nevertheless, and in spite of the clear difference between "benign" discrimination, or affirmative action (meant to eradicate the patterns of subordination from which perceptible differences stem) and "malign" discrimination (meant to create, tolerate, or perpetuate that very subordination), the Court's commitment to the ideal of a "colorblind" constitution, which would neither see nor tolerate legislated racial difference, has cast the constitutionality of affirmative legislation designed to ameliorate the consequences of our racist past into considerable doubt.

The second problem with the Court's understanding of equality and difference is simply that even if it be true that claims of racial difference are so often coupled with beliefs in racial inferiority that it is morally sensible to view with suspicion all legislation that racially delineates, it is not at all clear that a recognition of other deep or inherent differences between groups of people—between men and women, or aliens and citizens, or mentally competent and incompetent adults—is similarly badly motivated, or that legislation that presumes or respects those differences courts social disaster. Sometimes, of course, such delineations are indeed badly motivated, and in a way that does echo our racial histories. The turn of the century "paternalistic" laws prohibiting women's participation in professional life, or denying women voting rights, or excusing them from jury service, for example, did seem to be premised in part on a claim of women's intrinsic differences, and that claim was in turn wedded to a belief in female inferiority and vulnerability. But some "paternalistic" laws are not so clearly harmful, or so unambiguously motivated. Laws granting widows but not widowers a presumption of dependency in determining various benefits, for example, might be based on a wrongful and harmful "stereotype" of female dependency, or it might be an attempt, akin to an affirmative action program, to protect women who have spent their adult lives in nonremunerative domestic realms, against the harmful effects of a market economy that fails to recognize or compensate household and domestic labor. Laws that permit or require employers to protect female workers' job security against the risk of a pregnancy-related disability, even when they do not similarly protect all disabled workers, might be based on the paternalistic and pernicious notion that because women but not men have babies they must be protected against the harsh reality of the workaday world, or it might be based on a commendable attempt to equalize the abilities of men and women to combine parenthood and work.

The third problem with the Court's equation of equality with rationality, and of rationality with a tracking of difference, is that it is blind to the harms law can effect by ignoring, rather than fetishizing, differences. Just as a flat tax will disproportionately hurt the poor and help the rich, so a flat rule requiring, for example, that all firefighters or police officers have a minimum height or weight, will disproportionately exclude women from the ranks, and, to whatever extent height and weight fail to correlate with job performance, they effect this exclusion for no good reason. Similarly, a language proficiency requirement, evenhandedly applied, will disproportionately exclude those for whom English is a second language, and test score requirements will disproportionately exclude those who do not test well. If laws permitting or requiring either private or public employers to use such criteria are constitutionally permissible even where their relevance to the performance legitimately expected of employees is weak or nonexistent, then these laws will themselves be complicit in the perpetuation of societal subordination of already disadvantaged groups. And, their complicity lies in their failure to take real differences into account, not in their counterfactual and demeaning insistence on difference in the face of a deeper, more real, or truer universality.

These problems have prompted constitutional commentators to suggest alternative approaches to the problems of equality and difference. One approach, originating in some forms of radical feminist theory and critical race theory, suggests that societal differentiations between groups such as women and men and blacks and whites are themselves invariably a function of, or caused by, political subordination, and that it is precisely that political subordination that is forbidden by our constitutional commitment to equality. It is subordination that creates the perception of difference, and it is subordination that is, basically, unconstitutional. Hence, all perceived "differences" are windows to subordination, which the law should be required to address. This is sometimes called the "antisubordination" approach: the law should concern itself with the eradication of the subordination that causes differentiation, rather than with a rational mirroring of difference. Where a law aggravates or furthers, rather than ameliorates or addresses, such subordination, it should be invalidated as unconstitutional and violative of our commitment to equality, and it should be struck down regardless of whether it echoes or challenges perceived differences.

A second approach, sometimes called an "acceptance" approach and which stems from some forms of difference feminism or cultural feminism, reads in the equal protection clause a mandate that states take whatever steps are necessary, not to track differences nor to eradicate them, but rather to render the differences harmless or inconsequential. This approach has enormous appeal, particularly for its common-sense acknowledgment that some differences are properly cherished rather than viewed with suspicion, and should only cause concern to the degree they may cause unnecessary suffering. That women generally undergo pregnancy, childbirth, and lactation in order to reproduce, while men simply ejaculate, for example, is surely one such difference: it is a difference that is impossible to deny, and one that many men and women take great pleasure in. But it is also one that, presently, does have harmful consequences for women. Those consequences, however, are not necessarily consequences of the difference, or put differently, the difference itself need not have harmful consequences. Laws, such as those requiring employers to protect the job security of pregnant workers, can be used to prevent harm. Similarly, that women presently earn less than men at least in part because women engage in more childcare, is a difference that also has enormous consequences, many of them harmful to women. Those harms as well could be at least in part ameliorated through legal intervention: laws could, for example, require that the paycheck of a wage earner married to a spouse working in the home be issued jointly to both spouses, or even be divided equally between them, with the stay-at-home spouse receiving a full half. On this approach, it would be the failure to take action to render difference harmless—rather than the recognition of difference itself—that constituted the constitutional violation.

Both of these alternative approaches, however, arguably founder on the slippery slope to socialism. Surely the differences that are most subordinating are the differences caused by our unequal distribution of wealth in this society, and surely those wealth differences are the precise differences that most cry out to be rendered "harmless." Under either an antisubordination or an acceptance approach to difference and equality, the wealth difference would raise a constitutional problem, it would be something to be eradicated or something to be "made harmless." These two alternative approaches would suggest that at least vast differences in wealth should be viewed as constitutionally suspect. This result seems counterintuitive, and counterexperiential, particularly given the undeniable historical role of the Constitution in the protection of private property against public redistribution.

What should we make of this conclusion? If we hold fast to our commitment to private property, and to our view of the Constitution as its guardian, then that commitment and that view should indeed weigh against either of these alternative conceptions of equality and difference. Perhaps, though, the difficulty lies not so much with these alternative conceptions of equality, as with our assurance that vast wealth differences are constitutionally unobjectionable, and even constitutionally protected. Such assurance might not be warranted. Minimally, the emergence of these alternative conceptions of constitutional equality might prompt us to reexamine our conviction that our constitutional ideals of equality, equal protection, and liberty all buttress, rather than undermine our conviction that unchecked differences of wealth produced by an unchecked market are constitutionally protected against redistribution. Rather than discard conceptions of constitutional equality on the grounds that they throw the constitutionality of unchecked capital into question, perhaps we should reexamine, openly and without precommitment, whether or not it is truly the case that our constitutional commitment to an ideal of equality can co-exist with our tolerance of massive wealth differences, and the extraordinary inequalities to which it leads. Perhaps our tolerance of great wealth disparities and our espousal of ideals of equality can co-exist. But perhaps they cannot. If not, then this simultaneous constitutional tolerance of the institutions of wealth and capital, and constitutional celebration of equality, is surely a contradiction as central, and as momentous, and as disabling, as our country's contradictory embrace, in the first century of its existence, of the peculiar institution of slavery, and our simultaneous espousal of the moral and constitutional ideal of liberty.

Robin West
(2000)