Introduction: Equal Protection and the Problem of Identity
Famously dismissed as a “last resort” of constitutional lawyers1 and “a dubious weapon in the armory of judicial review,” the Equal Protection Clause of the Fourteenth Amendment, as Jacobus tenBroek predicted, did indeed come into its own.2 Brown v. Board of Education, which tenBroek lived to see (he died in 1968 at the age of 59), has come to represent the clause’s apotheosis but what would he have made of the controversies that followed? More than half a century later, current jurisprudence positions Brown in new contexts and at the center of new debates. Most recently, the possibilities of affirmative action for the benefit of racial minorities have been severely curtailed and the enforcement clause of the Voting Rights Act, one of the major victories of the civil rights era, has in effect been neutralized.3 At the same time the Supreme Court led by Chief Justice Roberts has handed down decisions which herald new landmarks in the struggle for recognition of gay and lesbian rights. Specifically, the Court’s apparent receptivity to anti-subordination arguments in the context of same sex marriage adds particular poignancy to those critics of its “colorblind constitution,” who argue that the anti-classification principles in matters of race have little basis in the original meaning of the Fourteenth Amendment and that, in matters of race at least, equal protection jurisprudence is now mired in what looks like a dead-end.
Recruited by Thurgood Marshall to work on the historical origins of the post-civil war amendment, tenBroek’s scholarship and that of his collaborator Howard Jay Graham, who wrote a substantial portion of the NAACP’s final brief in Brown v. Board of Education, supported a historical narrative of equal protection as the constitutional vehicle for the nation’s commitment to a founding promise of equality which was context specific.4 The brief submitted to the Court on November 16, 1953 responded to specific questions posed by the deadlocked Vinson Court and was accompanied, in the form of a supplement, by Graham’s analysis of the theoretical underpinnings of the Fourteenth Amendment.5 Headed An Analysis of the Political, Social, and Legal Theories Underlying the Fourteenth Amendment, the supplement trenchantly located the origins of the Fourteenth Amendment in the anti-slavery sentiment that moved the members of the Thirty-Ninth Congress. The three clauses of Section One of the Fourteenth Amendment, Graham claimed, represented the “constitutionalization” of an “ethico-moral” commitment on the part of the Thirty-Ninth Congress to tackle race-based distinctions because these were a mark of caste and this was the legacy of slavery:
The first Section of the Fourteenth Amendment did not spring full blown from the brow of any individual proponent. Primitive natural rights theories and earlier constitutional forms were the origins of its equal protection-due process-privileges and immunities trilogy. The occasion for the metamorphosis of moral premises to full-fledged constitutional status was the attack on the American system of slavery. During the long antislavery crusade, the trilogy became a form of shorthand for, and the spearhead of, the whole of the argument against distinctions and caste based on race.6
Pointing out that 10 of the 15 members of the Joint Committee on Reconstruction had antislavery backgrounds, Graham argued to the shared understandings of the men who formulated and submitted the Amendment. In their minds, the phrases “privileges and immunities,” “equal protection,” and “due process” had a shared and specific significance and this was opposition to slavery. Thus whilst equality as an absolute concept required that no legal recognition be given to racial distinctions of any kind, the all-important context was concern with caste and that “great reservoir of prejudice and evil” upon which racial distinctions drew. From this perspective “the notion that any state could impose such distinctions was totally incompatible with antislavery doctrine.”7
Sixty plus years later, the authority of Brown v. Board of Education is unassailable but the correct interpretation of the underlying values of the Equal Protection Clause continues to generate heated debate. Nowhere is this more important than in the current arguments concerning the constitutionality of affirmative action. In Parents Involved v. Community Schools, Chief Justice Roberts memorably asserted that history would be heard.8 His predecessor, Earl Warren, however, placed little weight upon history. The NAACP brief notwithstanding, the Chief Justice, in pragmatic fashion, recognized the limitations of appeals to history to solve the problems of today. Absent the ability to turn back the clock, he argued, what was important was the here and now; specifically the effect of segregated schooling needed to be addressed by reference to the “full development” of public education and “its present place in American life.”9 “Only in this way,” he insisted, “can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”10
This “proud ahistoricism” may be “one of Brown’s most remarkable characteristics”11 but in constitutional terms it was unusual and possibly regrettable. Judicial appeals to history can be important justificatory tools in legal argument but where the driving purpose is the largely rhetorical objective “of reassuring citizens that courts are acting consistently with deeply held values,” historians warn us to approach with care.12 “History teaches that history teaches nothing.” Hegel’s aphorism is well known13 but as Professors Sarat and Kearns remind us, “law uses history to tell us who we are.”14 The current Chief Justice’s rhetoric justifies a specific interpretation of the Equal Protection Clause which now invokes Justice Harlan’s Plessy dissent to prohibit affirmative action in the name of a colorblind constitution which tolerates no classifications of race whether benign or malign. It is an interpretation which conceptualizes equal protection in terms of formal equality, with a commitment to the values of individual moral significance and equality of opportunity for all. These are values which resonate strongly with the national psyche but they are not immediately best-suited to assist those who seek to argue that unequal treatment can sometimes be constitutionally justified.
“All men,” wrote Aristotle “think justice to be a sort of equality …. But there still remains a question: equality or inequality of what?”15 In 1886, the Supreme Court in Yick Wo v. Hopkins ruled that “[t]he equal protection of the laws is a pledge of the protection of equal laws.”16 These words have never been controverted but as the subsequent debates concerning the scope and meaning of the Equal Protection Clause indicate, that conclusion was by no means inevitable. In the 1965 revised edition of his book Equal under Law, tenBroek, looking back at Brown, pondered the impact of the Court’s decision in terms of the meaning of “equality.” The sentence “[a]ll men are created equal” is not a declaration but an imperative, he asserted, which in Western European democracies in general and the United States in particular can have three possible dimensions. The first, “one for one” is directed towards political participation, is most commonly expressed in the slogan “one person, one vote” and comes down to this: “there are few differences among men that may be taken into account when considering their right to participate in the suffrage and those differences that may be taken into account must be carefully scrutinized for their relevance to the purpose of the suffrage.”17 The second, the “natural rights” model, however, references basic social contract ideas of inalienable rights, the institution of government to protect those rights; government by consent of the governed; and the right of the people to change that government, either by peaceful means or by revolution, whenever it fails to fulfill its purpose.18 This version, he argues, in Declaration of Independence and abolitionist usage, was “almost exclusively substantive in character”—that is, the fundamental idea is the protection of natural rights, so that the Fourteenth Amendment confirms the duty of governments in this respect:
The phrase “no state shall … deny” therefore becomes a single command: Each state shall supply. And the whole clause is understood to mean: Each state shall supply the protection of the laws to men in their natural rights and the protection shall always be equal to all men. It was because the protection of the laws had previously been denied to some men that the word “equal” was used.19
His third model is the Hopkins equal treatment or anti-classification/non-discrimination definition which is neutral in the sense that it makes no assertions of specific rights but demands rather that the laws apply equally to all persons within the jurisdiction. It is this model of equality which now dominates equal protection jurisprudence but as tenBroek himself explained, if governments are to carry out what is arguably their primary function, that is, decision-making concerning the allocation of society’s resources, then the exercise of some kind of discrimination in so doing cannot be avoided and we must be clear why exactly it is that some kinds of unequal treatment are more problematic than others. As Professor Brake reminds us, unequal treatment is only problematic when it is based on unacceptable criteria, but to the extent that these are socially determined and mutable over time, equality claims are “largely about challenges to existing social meaning” so that what is at stake is the place of the Constitution in the reconstruction of social relationships.20
“With all its blandness, simplicity, and technical imprecision, the Brown opinion of the Chief Justice contains the stuff of which history is made.”21 tenBroek’s verdict works because, rather than in spite of, the open-texture of Brown. As James Boyd White reminds us, the law “is a not an abstract system or scheme of rules … but an inherently unstable structure of thought and expression” which builds upon, reflects, and mediates underlying tensions not only between “ordinary language” and legal and other specialized discourses, but also “between language itself and the mute world that lies beneath it.”22 The current Chief Justice turns to history to authenticate a specific interpretation and validate a specific conclusion: the Equal Protection Clause of the Fourteenth Amendment “protect[s] persons, not groups”;23 “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”24 To his critics, he exploits Brown’s open-texture and recasts its spirit to suit his own political vision, but his predecessor’s success lay in his ability to capture a social and political imagination whose time had come. How history will view the Roberts Court remains to be seen but as the chapters in this collection reveal, the extent to which the Court’s equal protection judgments adequately respond to perceptions of structural disadvantage and unjustified discrimination is very much a contemporary concern. Nowhere is this more pressing than in relation to those hot-button issues of contemporary America: race, gender, and sexual orientation.
This collection brings together contributors with a range of perspectives to interrogate the legal, theoretical, and factual assumptions which shape case law in these areas and to consider the extent to which they satisfactorily address contemporary concerns with social hierarchies and norms. The collection is divided into five parts and moves from the paradigm of race, the traditional concern of equal protection, to consider, via issues of gender and sexual orientation, the extent to which equal protection principles, despite, or indeed because of, their specific historical genesis, have contemporary resonance with and can be made to work for new and emerging minorities and groupings. The chapters foreground in different ways the connections between equal protection jurisprudence, discrimination in its contemporary manifestations, the implications of identity politics, and the moral and political conceptualizations of equality that represent the parameters of debate. They draw on historical analysis and disciplinary insights of the social sciences to bridge the gap between theory and practice, a characteristic endeavor of equal protection lawyering since Thurgood Marshall and his team first trialed the now more or less obligatory social science amicus curiae brief to success in Brown.25 Notwithstanding the recent same sex marriage gains, the overall tone is bleak and generally realistic concerning the limits of constitutional litigation in general and the Equal Protection Clause in particular as mechanisms for achieving enduring social change.
The chapters begin with critical histories that set a pessimistic tone. Current race jurisprudence, argues Valdes, opening the collection, discloses a “judicially stunted” conception of equality” which turns its back on slavery as the original constitutional sin. The “unholy history” that emerges should “disabuse living Americans of any belief that judicial protection of equality is a front line of U.S. constitutionalism.” Nevertheless, he argues, the extent to which “identity politics,” by which he means the politics and ideologies of White supremacy, have shaped and continue to inflect Supreme Court race discourse, must be understood as a
predicate for effective equality strategies going forward—strategies that appreciate the limits of law, and of adjudication in particular, and that include, but do not exaggerate, the role or potential of federal litigation and the judicial review power in ongoing struggles over constitutional equality (and democracy) in U.S. law and society over the course of a new millennium.26
The intuition that there must be a better prospect with which to go forward, of the possibility of a third reconstruction to undo “what the judges have done,”27 tempers the underlying pessimism but for Han, in the chapter that follows, the escape from what she terms the “dead end” of the Equal Protection Clause lies not in constitutional jurisprudence, but in a psychological reawakening or reassertion of the “claim of the slave” in pursuit of a fugitive law of freedom. Han’s critique of the Court’s affirmative action and enforcement clause jurisprudence becomes a search for a critical knowledge of race and law via a methodology of learning through remembrance. An anamnesis of slavery, she argues, becomes a positive response to Derrick Bell’s racial pessimism when it can ground a new racial politic centered on a narrative of racial identity mediated in terms of refusal of renunciation.
Both chapters, in different ways, bring into play what feminist scholar Linda Nicholson identifies as the contradictory stance in contemporary national discourse concerning the significance to be attached to identity differentiations and specifically those of race, gender, and sexual orientation. On the one hand, she argues:
race and gender are more than ever recognized as important phenomena of social life. In the 2008 presidential campaign, we constantly talked about both as influencing the outcome. We wondered whether Hillary Clinton’s crying was helpful or not to her campaign for the Democratic Party’s presidential nomination. We pondered how the racial remarks of Barack Obama’s pastor might hurt Obama’s chances. We talked about Clinton’s appeal to older, white women and Obama’s problems with older, white men. The topics of race and gender were all over the news, with few disputing the assumption that race and gender would in some ways affect the outcome. But, at the same time, even while we were making the above claims, we also kept saying that the era of identity politics was dead and that Americans were now in a “post” racial and “post” gender era. And now that that presidential race is behind us, we still continue to assume that race and gender profoundly influence social life even as we continue to proclaim that race and gender no longer matter.28
This confusion she attributes to the influence of “environmentalism,” that is, the assumption that the categories of race and gender depict bodily and behavioral characteristics which are stable across time and social context. It is this assumption which drove twentieth-century challenges to racism and sexism but it did so in two mutually contradictory ways. On the one hand, the civil rights gains of the twentieth century were largely built on assumptions that denied the significance of racial and gender differences in favor of universalist assertions of the commonality of human needs and aspirations. On the other hand, it was disillusion with the ability of universalist discourses to tackle the structural mechanisms by which racism and sexism remained socially embedded that gave rise in the late 1960s and early 1970s to so-called identity politics or a politics based upon assertions of the significance of racial and sexual difference.29
As ideas concerning the “reality and importance of socially caused differences” have become more widely accepted, the result has been an unresolved tension between denial and acceptance of difference in discourse concerning the significance of race and gender which now increasingly extends to matters of sexual orientation.30 Both however, depend upon Nicholson’s “environmentalist” assumptions which modern science and cultural and psychoanalytical theory do much to challenge. In an influential lecture, Stuart Hall reminded his audience that although “one of those major concepts which organize the great classificatory systems of difference which operate in human society,” in the absence of any sustainable biological or genetic account, race must be regarded as a “floating signifier.”31 By this he meant that “race” is a discursive construct, part of the “systems and concepts of a culture,” of its “making meaning practices” which because they are culturally determined can never be “finally or trans-historically fixed.”32 Like all signifiers, that of race will be subject to what he describes as
the constant process of redefinition and appropriation, to the losing of old meanings, and the appropriation and collection on contracting new ones, to the endless process of being constantly re-signified, made to mean something different in different cultures, in different historical formations, at different moments of time.33
The insight that matters of identity have a symbolic or linguistic dimension which is not constant but is mutable across time and context is not confined to race but has found particular resonance in relation to gender and sexual orientation in the work of Judith Butler.34 Her analysis of identity as performance sees externalities of behavior and speech function not as reflections or expressions of that which is interior, but rather as processes of cultural signification because they acquire meaning via social interpretation. The recognition that the categorizations of identity in terms of race gender and sexual orientation do not represent fixed sets of attributes, in so far as it affords the possibility of “slide” or contextual fluidity, has the capacity to break down binary oppositions which can be subversive and thus potentially personally liberating. However, the extent to which matters of race, gender and sexual orientation, all of which go to the heart of personal identity, should find constitutional recognition in a post-identity world is an issue that underpins much of contemporary equal protection discourse and becomes a unifying theme for this collection. Han’s return to Bell’s call for a reconstruction of identity raises directly the extent to which critical theory can set an agenda for political and thus legal practice.
Butler’s emphasis on identity as discursively constrained has evoked the charge that her political agenda is underdeveloped. Martha Nussbaum’s uncompromising critique still has the power to sting:
What precisely does Butler offer when she counsels subversion? She tells us to engage in parodic performances, but she warns us that the dream of escaping altogether from the oppressive structures is just a dream: it is within the oppressive structures that we must find little spaces for resistance, and this resistance cannot hope to change the overall situation ….
Isn’t this like saying to a slave that the institution of slavery will never change, but you can find ways of mocking it and subverting it, finding your personal freedom within those acts of carefully limited defiance? Yet it is a fact that the institution of slavery can be changed, and was changed–but not by people who took a Butler-like view of the possibilities. It was changed because people did not rest content with parodic performance; they demanded, and to some extent they got, social upheaval.35
This is a critique that Butler herself should not accept. If there is no foundational ontology of identity but only normative injunctions “that [operate] insidiously by installing [themselves] into political discourse as its necessary ground,” then the task of revealing, challenging, and reconfiguring those injunctions becomes a precursor to societal change and thus in and of itself a political activity.36 Moreover, as Nicholson points out, the insight that Butler’s ideas have significance to the social category of race is not to lose sight of what she terms the “social facticity and structural importance” of these categorizations nor “to deny that social meanings and social structures interact with each other in complex ways”:
When we recognize that the laws and institutions governing race and gender extend back within the United States to the very days of its founding, have had major social effects on the distribution of economic resources, as well as on many other aspects of social life, and that much of the legacy of those effects are still with us, then we must think of gender and race in social structural as well as in symbolic/linguistic terms and assess the specificity/pervasiveness of such structures as well as the specificity/pervasiveness of our understandings of race and gender.37
Professor Guinier’s call for a new racial literacy with “the capacity to decipher the durable racial grammar that structures racialized hierarchies and frames the narrative of our republic” makes much the same point,38 but as the chapters in Parts II and III of this collection consider, the prospects for an equal protection jurisprudence conceptualized in ways that can untangle the complex relationships between matters of identity and socioeconomic circumstance remain bleak. Nowhere is this more contentious than in relation to the use of race-based remedies in a “post-racial era.”
For Haney López, writing in this collection, a court under the influence of “the most conservative cohort of justices in a century” stands accused of “judicial closed-mindedness [and] an unwillingness to engage with and thus potentially learn about the operation and evolution of an enduring form of injustice.”39 He argues that the “intentional blindness of [current jurisprudence] represents not a genuine application of equal protection law, but a successful effort by conservative judges to protect themselves from discomfiting evidence that racial mistreatment persists.”40 Willing to wound, though as yet not ready to strike, the Court masks “reticence in attacking civil rights” with “shrewd doctrinal maneuvering” which declines, for example, to prohibit affirmative action outright but nevertheless obstructed the challenged program on the ground that strict scrutiny was not applied strictly enough, or strike the key enforcement provision of the Voting Rights Act, but nevertheless “effectively gutted it” because “the prospects of Congress … reaching a new accord regarding which states the Act covered are … dim.”41
As Paris suggests, the “doctrinal maneuvering” which has characterized the Court’s responses to attempts to achieve a racially diverse student population stems from the opacity of a Brown mandate which used the language of discrimination but did not make clear whether this was always objectionable. “In the field of public education the doctrine of ‘separate but equal’ has no place.”42 So asserted the Brown court and the conclusion that separate educational facilities deprived the Black plaintiffs of the constitutional guarantee of the equal protection of the law was clear. The rationale, however, was not. To support its ruling, the Court gave three reasons. A dual system of education which separated children on the grounds of race violated the Equal Protection Clause of the Fourteenth Amendment43 because: a) state-mandated separation of Black from White children offends the Constitution per se;44 b) governmental discrimination by race causes psychological damage to Black children;45 and c) governmental discrimination by race deprives Black children of the educational benefits of mixing with White children.46 What the Court did not make clear was the mischief to which the constitutional guarantee is addressed. Specifically, it did not spell out whether the Constitution prohibits race-based classifications per se or merely those classifications that are invidious because they are mechanisms of racial subordination.
In the context of Brown itself, it did not need to do so; the separate provision of education required by Southern states in the first half of the twentieth century was part of a caste system which assigned subordinate status to African-Americans on the basis of their race or color.47 From this point of view a dual system of education was necessarily invidious. For Brown supporters, this hardly needed stating.48 Racial equality could not be accomplished whilst the races were separated so to prohibit discrimination was to promote integration.49 As Thurgood Marshall later judicially explained, “unless our children begin to learn together, there is little hope that our people will ever learn to live together.”50
After Brown, wrote civil rights attorney Robert L. Carter, it seemed certain that the civil rights fight had been won, but 50 years on, his confidence seemed misplaced.51 The latent ambiguity in the reasoning sustains a different court with a new vision and a different language for the relationship between race and social justice and constitutes a fault line in the narrative of racial progress that was the promise of Brown. What the Constitution now requires is not integration but a society free from official and intentional classification on the grounds of race.52
The problem was apparent in the conceptualization of the Brown remedy.53 Twelve months after the Court handed down its decision, Brown II directed federal courts to supervise implementation of the remedial process but was deliberately vague as to how this was to be done, and gave little guidance as to how judicial discretion was to be exercised.54 Significantly, the words “segregation,” “desegregation,” and “integration” were not used. Instead, the formulations of the Court underwent a significant shift. What was at stake, said the Chief Justice, was “the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.”55 The earlier ruling, he claimed, asserted “the fundamental principle that racial discrimination in public education is unconstitutional.”56 All legal provisions “requiring or permitting such discrimination must yield to this principle.”57
For more than 10 years, Southern states, in opposition, relied upon these words to offer Black students facially neutral “freedom of choice” plans producing only minimal changes in the racial composition of the public school population until 1968 when the U.S. Supreme Court, in effect, acknowledged that “desegregation” required race-conscious integrative action.58