Amendment 14, Section 1, Clause 4: Equal Protection Clause

Panel Recap -- America and the World

The Constitution 2020 Conference opened powerfully with a panel that engaged questions essential to defining a vision of progressive constitutionalism: Who ‘counts’ as American?  And what kind of law ‘counts’ as American?

The panelists, along with their moderator, Bruce Ackerman, tested the boundaries between citizen and non-citizen, and between U.S. and international law, in the context of national security, foreign policy, immigration enforcement, and discrimination against minorities since September 11, 2001.

The panel opened with Aziz Huq (University of Chicago Law School) and Muneer Ahmad (Yale Law School), who tackled issues on citizenship, personhood, and advocacy. Their comments framed an approach to the question of who ‘counts’ as American. Then Jon Michaels (University of California Law School – Los Angeles) and Oona Hathaway (Yale Law School) reflected on the need to reintroduce democracy to determine what kind of law ‘counts’ as American law. Their proposals paid special attention to checking executive power in national security and foreign policy matters.

Video Courtesy of Yale Law School

Who ‘counts’ as American?

Since September 11, 2001, Muslim Americans have had a common encounter with discrimination that has often placed them outside the circle of who ‘counts’ as American. While discrimination can and has alienated Muslims, Aziz Huq proposed that this shared experience also has the power to form the otherwise diverse and fragmented community into a single interest group that can reclaim core constitutional rights, such as free speech, freedom of religion, and privacy.

As credible advocates for constitutional change, Muslim Americans can powerfully advocate to base counter-terrorism operations on trust and cooperation with the Muslim community, rather than on surveillance and suspicion. Huq urged that we open foreign policy decision-making to a diversity of voices, including Muslim Americans, because “without voice, loyalty often erodes.”

Muneer Ahmad then identified the citizen/non-citizen divide as a major barrier to expanding who ‘counts’ as American to communities with immigrant populations. Traditionally, the rights granted to citizens and persons in the Constitution are considered independent sources of rights, but Ahmad argued that the two are in fact tethered together so that “citizenship circumscribes personhood.”

Citizenship exceeds personhood across our legal system. In order to secure protections of personhood for their clients in court, for example, immigrant rights advocates must argue that their clients are citizen-like – hard-working individuals who go to church, don’t have a record, and have the support of family and friends. In other words, lawyers must argue that their clients are super-citizens who represent a form of social rather than constitutional citizenship. However, the rights of personhood will never meet the full level of rights that citizenship provides. Immigrant rights advocates therefore necessarily reinforce the citizen/non-citizen divide and the paradox continues.

How can progressives expand who ‘counts’ as American under our Constitution given the dominance of the citizen/non-citizen divide? We can either expand the ambit of citizenship, Ahmad suggested, or re-imagine citizenship entirely to better match a globalized world where people have multiple loyalties and identities.

What law ‘counts’ as American?

Turning to the sweeping powers of the executive since September 11, 2001, Jon Michaels and Oona Hathaway reflected on what law ought to ‘count’ as American. Jon Michaels noted that the Bush administration bypassed constitutional requirements; it gathered information from corporations about their customers, used foreign interrogators, and engaged in domestic wiretapping, for example.

The problem of unchecked executive power is not specific to the fight against Al Qaeda, however, but rather a result of broader globalization processes where "the law lags behind," Michaels argued. Social, technological, and economic trends in globalization blurred traditional legal boundaries, allowing the Bush administration to aggrandize power and operate military and national security apparatus free of traditional regulation. Michaels concluded that Congress and the courts ought to check executive power in the future through structural change rather than ad hoc regulation.

Oona Hathaway brought the discussion into an international framework, examining America's relationship to other nations through its dual powers of making law and making war.  Hathaway noted that most of U.S. foreign policy is made by the President acting alone, authorized by Congressional authority delegated some forty years earlier. Similarly, under our Constitution, Congress gives the President limited authority to make war, but those limitations have been ignored when expired, reducing Congress' role to paying war bills.

Hathaway argued that progressives should bring congressional oversight and democratic legitimacy back into international law and foreign engagement. Specifically, Hathaway and Bruce Ackerman are working on a proposal that would create a new default rule that makes Congressional authorization for war expire in two years time.

Take a look at the video to learn more about their proposal -- and dig deeper into all of these rich reflections on a progressive vision for constitutional change.

Social Rights—Recap: Economic Rights in Disguise

Risa Goluboff began the Social Rights panel fittingly by posing the "what" question: what are social rights? Are they civil rights, political rights, or civil liberties? As it turns out, what most of the authors in The Constitution in 2020 and what the panelists at the conference were referring to can more accurately be categorized as "economic rights."


 Video courtesy of Yale Law School.


Goluboff then swiftly introduced a question that would linger throughout the panel: why call these rights, social rights, and not economic rights? In fact, Goluboff suggested that calling these rights, social rights, may doom them from the outset. Historically, social rights have not fared well in America. As part of the nineteenth-century tripartite conception of citizenship, the judiciary refused to enforce social rights, providing them with the weakest protections. In the human rights arena, the Executive, while signing other major rights-based covenants, has failed to ratify the International Covenant on Economic, Social and Cultural Rights.

The second speaker, Jacob Hacker, shifted gears and focused on the "why" question: why should America care about economic rights? Initially, he marshaled compelling statistics to illustrate the surreal stratification in recent years, suggesting that the justification was increasing economic inequality itself. However, it later became clear that the problem was not economic inequality alone. Rather, Hacker's real concern was that economic inequality had resulted in unequal--that is, undemocratic--political representation. Politicians increasingly cater to the concerns of the wealthy, while the voices of lower-income classes have diminished to a "whisper." For Hacker, it was a foregone conclusion that reform must come from the legislature.

The third speaker, Ben Sachs, answered Hacker's invitation to think about the link between economic inequality and political inequality by turning to the "how" question: how should America begin remedying this growing income disparity? Sachs focused on empowering the labor unions as a crucial mechanism for equalizing both economic and political power. Labor unions have the capacity to redistribute a firm's income more equitably to workers, as well as to mobilize and exert sufficient political pressure on the legislature. For Sachs, the best bet for reform lay not in federal legislation, but state and county legislation where the workers' political power exerts its largest influence. (However, that tact would first require reforming federal labor law to free up state and county labor legislation.)

Even if social rights are economic rights in disguise, the panelists seemed to skip from the "why" (economic inequality) to the "how" (the judiciary or the legislature) without addressing the real "what" question--that is, what are economic rights?

Then again, the panelists may not have skipped over anything. For many, the "what" was economic inequality itself. And the "why" consisted of the numerous harms that radiate from economic inequality, whether that was political and racial inequality, or unequal access to health care, housing, and education.

Thus, many panelists and attendees conflated the substance of, and the justification for, economic rights. It seems a worthwhile question to ask which is which.

Are we concerned about economic inequality because it departs from fundamental founding values such as equality irrespective of lineage, and liberty irrespective of class and caste? (Is equality a good in itself?) Or are we concerned about economic inequality because of the myriad secondary harms it reproduces?

While the former lends itself to formulating a principle--a general right to economic equality, the latter lends itself to enumerating a specific list of rights. In terms of methodology, the former suggests we should tackle the problem at its systemic core and address the pariah of political questions: redistribution of wealth. Whereas the latter suggests we should tackle economic inequality from the outside-in via piecemeal reforms addressing each individual secondary harm.

We could be concerned with both questions, and then the key issue may be which approach is more strategic. Indeed, the panelists likely pondered these questions and concluded that addressing the secondary harms would be more realistically achievable in scope and more palatable in avoiding the dreaded associations with excessive regulation, socialism, or worst of all, communism. As suggested during the panel, this calculation probably also resulted in using the label, social rights, as opposed to economic rights.

However, addressing the secondary harms, or even using the term, social rights, leaves open the risk that economic inequality gets lots in the shuffle--that we, for example, address problems of political inequality or access to health care, without ever truly confronting the widening economic gap. There is the danger that we merely soften the blow of economic disadvantage, but sanction it nonetheless.

Finally, even if it is wisest to proceed obliquely, it is debatable which secondary harm is the most crucial to tackle. In William Forbath's piece in The Constitution in 2020, he reminds us that the Fourteenth Amendment was very much written with concern for economic equality in mind, except then it was the "rights of contract and property that were thought to ensure white men the opportunity to pursue a calling and earn a decent livelihood." Personally, when I think of what ensures equal opportunity to pursue a "decent livelihood" today, I immediately think of education, not political representation as Hacker and Sachs did. Education--whether academic, professional, or vocational--strikes me as the main currency (and predictor) for social and economic mobility.

Panel Recap: Localism and Democracy

At the inception of the American Constitution Society, just eight years ago, this panel might well have been viewed as an anomaly. Federalism was the watchword of conservatives struggling to constrain the power of the national government. How times have changed. As Ernie Young noted in his pre-conference blog post, "During the Bush years, progressives trained since the 1960's to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California's right to go its own way on environmental policy and Massachusetts' prerogatives to allow gay marriage at home and protest human rights violations abroad." The result has been a flourishing progressive federalism movement—or more accurately, as several panelists noted, a federalism without political valence. The four panelists last Saturday spoke to divergent features of today's federalism. What united their presentations was a sense of the dynamism and possibility of the new federalist movement.

Video courtesy of Yale Law School.


First to present were Ilya Somin and Ernie Young, who brought opposite perspectives to the question of how diminishing loyalties to particular states have altered the course of federalism. Somin argued that lower barriers to inter-state mobility promote federalism by facilitating "voting with your feet," even as the rise of federal funding reduces states' incentives to attract tax revenues. Young argued, to the contrary, that a resurgence of state loyalties is needed to foster rich cultures of federalist innovation within the states.

 Richard Schragger and Ethan Leib, next to speak, turned to the details of implementing progressive federalism. Schragger made an impassioned pitch for "federalism all the way down" in the tradition of Justice Brandeis, looking to cities rather than states as the real cradles of policy innovation. He argued for a related kind of localism as well, suggesting that "progressives should reassert the relationship between political and economic decentralization." Leib, citing his own experience with a team that seeks to revise the California Constitution, discussed how progressives might focus on state constitutional conventions as immediate opportunities to facilitate progressive change.

Heather Gerken, in her commentary on the panel, sought to connect its themes with those of the Individual Rights panel that preceded it. She argued that the traditional division between rights and structure as constitutional paradigms has limited progressives in their efforts to promote minority rights. Drawing examples from the struggle for racial justice and from her own work on dissenting by deciding, she argued that progressives should embrace federalism as a new structural language for the values of participation and representation.

Along with the panelists and questioners, moderator Judith Resnik suggested several avenues for further thought. First, what is the relevance of trans-local organizations of government actors (what Resnik, along with Josh Civin and Joe Frueh, have called "TOGAs") in progressive federalism? Second, how limiting are the challenges of immobility in American society? Third, what should progressives do about the currently dysfunctional governance of major states?

I'll close by suggesting a few others. One important question is the extent to which federalism will remain without political valence. Are we likely to see a kind of bifurcated federalism, with liberals and conservatives favoring different versions? Another question: Will governance at the local level reproduce the power dynamics of governance at the national level, or—as Gerken suggests—does it afford unique representational opportunities? Finally, given the present Democratic control of Congress and the presidency, will liberals need to endure a future period in the political wilderness in order to heed Justice Brandeis's call—channeled by Schragger—to "end this business of centralization" and "go home, back to the states" to "do their work"?

Discrimination, Violence, and the Constitution

Crosspost from Balkinization

The essays in The Constitution in 2020 ask not only what the Constitution can do for us, but what we can do for the Constitution. In other words, the book offers both visions of what constitutional law should be and concrete suggestions for how to make it so. Optimism—pragmatic, cautious, yet still resolute—characterizes discussions of equal protection, social and economic rights, free speech, and religious liberty. The book says very little, however, about the most litigated provisions of the Bill of Rights, the provisions to which individuals facing an exercise of state power most often appeal. I refer to constitutional criminal procedure, and I wonder: Is the criminal justice system no place for constitutional optimism? Is criminal justice a realm where we can do little with the Constitution, and where it can do little for us?

American policing and punishment practices are characterized by considerable racial and economic disparities. And at least at a certain level of abstraction, equality is a powerful constitutional norm. So we might look for constitutional levers to address inequality in the criminal justice system. Tracey Meares takes this approach in “The Progressive Past,” the sole essay in The Constitution in 2020 directly focused on criminal justice. As Meares notes, in the 1960s and 1970s, courts applied constitutional protections for criminal defendants in attempts to address widespread racial discrimination. But this project was never fully successful, and at any rate, in more recent decades courts have read the Bill of Rights to provide much narrower protections to defendants and thus to permit a much wider range of state practices. Toward a new (or revived) effort to address inequality, Meares suggests that we think of constitutional criminal procedure not merely in terms of protections for individual defendants, but as a source of public legitimacy for the criminal law. Her “public-regarding approach” would identify disparities that undermine public perceptions of fairness and legitimacy, such as race-based juror selection or race-based defendant selection (selective prosecutions), and it would use constitutional levers to address those disparities. 

There is much to be gained by invoking antidiscrimination norms to reform American penal practices. Of course, we will still argue about what constitutes equality. As noted in Robin West’s essay in the 2020 volume, the legal conception of equality emphasizes treating like cases alike. In criminal justice (and elsewhere), there is considerable disagreement about how to classify “like cases.” For example, many would argue that racial disparities in American prison populations simply reflect patterns of offending. We impose like punishments on like offenders, the argument goes, and it’s unfortunate but true that racial minorities more often commit serious crimes. There are ways to undermine this claim, including Meares’s proposed attention to selective prosecutions. But even if we could agree on what equality means, and even as we pursue more egalitarian practices, it is not clear that equality is enough. I think observers of America’s sprawling penal system must ask whether inequality is the only constitutionally suspect feature of that system.

Assume, far-fetched as the notion may be, that our criminal laws and enforcement practices were purged of racial discrimination. Assume, also, that the expansive conception of the state’s penal power persisted. Legislatures still possessed the same broad discretion to criminalize conduct and to prescribe lengthy prison sentences that they have today; police officers still possessed the same broad discretion to search and seize persons in the investigative process; and prison officials still possessed the same broad discretion to use force within the prison to maintain order and discipline. In this imagined world, none of this discretion would be exercised in a racially discriminatory manner, but it would still be used to police and punish aggressively.  In this imagined world, the criminal justice practices currently directed disproportionately at non-whites would be experienced by everyone. Would the Constitution be satisfied?

The question is whether and how the Constitution imposes any limitations on the state’s use of force independent of requirements to use force in a nondiscriminatory manner. Do constitutional provisions such as the Fourth and Eighth Amendments restrict state power in ways not addressed by the Equal Protection Clause? Earlier this year I wrote about the use of the term “violence specialists” to describe agents of the state authorized to use physical force for public ends. The authors who use this term assume that every society has its violence specialists, but constitutional democracies are distinctive in that the violence specialists are subordinated to the rule of law. But which law? What I’d like to figure out—before 2020, I hope—is whether the Fourth and Eighth Amendments could provide more meaningful restrictions on state officials’ decisions to use force to police or punish.

Alice Ristroph is Professor of Law at Seton Hall University School of Law. She will be appearing on Saturday's "Individual Rights" Panel with Rich Garnett (Notre Dame Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), Paul Horwitz (University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Elizabeth Emens (Columbia Law School, "Disability's Force").

Disability's Force

Crosspost from Balkinization

It is time for a new frame for our thinking about antidiscrimination law and theory. Many have observed that the trend in the Court's reasoning about race discrimination especially -- under the Constitution as well as key statutes -- is counterproductive. This reasoning leaves little room for constructive race consciousness, for flexible and creative remedial efforts, because it leaves us with little other than an individual bad actor model and a goal of colorblindness. Stepping outside the Court's current doctrine, I propose a new model for understanding discrimination, a model drawn from disability law and theory. Disability, I want to suggest, can provide us with useful ways to think about discrimination, to conceive of identity, and to design remedies.   

First, disability offers a model of discrimination that requires no bad actors to produce exclusionary outcomes. In this way, disability helps us to move away from the individual bad-actor model. The paradigm case of the wheelchair user presents this scenario starkly. A building has stairs; at least in a world before the ADA, no building designer needs to have thought about whether stairs would exclude people in wheelchairs in order for people in wheelchairs to be excluded. No bad actor, yet utter exclusion. Disability thus demonstrates that facially neutral policies can be disabling, even if no animus underlies them.    

Second, disability theory presents a model of identity that shows us how environment can create disadvantage, but does not insist on a wholly constructivist notion of difference. The social model of disability is a counterpoint to the so-called medical model. Whereas the medical model emphasizes impairment as the biologically determined, highly individualized basis of disability, the social model locates disability in the interaction between individual impairment and the social environment. Or as the writer and activist Simi Linton, who uses a wheelchair, puts it to her students, "If I want to go to vote or use the library, and these places are inaccessible, do I need a doctor or a lawyer?" The social model does not insist that biological difference is nonexistent -- a claim implausible to many. But the social model does redirect our attention from the medical notion of impairment to the social nature of impairment's relation to the outer world, and thus renders that difference relatively meaningless by shifting our focus to the ways society generates that meaning. The social model therefore offers a path out of the back-and-forth struggle to claim nature or nurture, and rests our gaze on the significant operation of meaning making.
Third, disability law offers a remedial model that can attend to individual variation and change the social environment through a process of negotiation and innovation. The ADA's accommodation requirement offers, at least in principle, a resounding answer to the assimilationist worry in antidiscrimination law -- that is, to the question, Who has to change, the individual or the environment? Accommodation requires an employer to make adjustments to enable an individual to get the job or do the job. And that requirement is not just a right to sue after the discrimination has occurred; rather, it is accompanied by incentives for employers to engage in an "interactive process" with employees to design effective accommodations to avoid or address problems ex ante. Moreover, while this interactive process and the underlying right expressly target individuals, the process of accommodation may have broader benefits to the workplace, either automatically or indirectly. Thus, accommodation presents both a metaphor and a practical process for changing the structural environment, while at the same time linking that change to individuals' particular needs.
I look forward to more discussion at the conference of this very general sketch of what I think disability law and theory offer our antidiscrimination thinking. Before closing, though, I should note that there are multiple downsides to the disability model. Foremost among them -- and perhaps already in readers' minds -- is the widespread assumption that disability means inferiority. To say that race discrimination, for example, can be better understood by adopting a disability frame may seem to accept stereotypes of racial hierarchy and inferiority. (Worries about the stigma associated with disability -- and especially the assumption of inferiority -- are well known to transgender advocates who have debated the merits of using the disability model.) But such a concern adopts (common) assumptions about disability that a disability studies perspective challenges by showing how the disadvantage created by difference has social roots. Nonetheless, there are admittedly dangers to even broaching the disability frame. As we look for bold new ways to think about discrimination, however, we need to be willing to confront those dangers. Disability law and theory have much to offer as we work to undo the limiting trend in equal protection.


Elizabeth Emens is Professor of Law at Columbia Law School. She will be appearing on Saturday's "Individual Rights" Panel with Rich Garnett (Notre Dame
Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), Paul Horwitz (University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

C2020 in The New Yorker

In this week's New Yorker, Jeffrey Toobin draws on The Constitution in 2020 to illuminate President Obama's (unique? idiosyncratic? pragmatic?) approach to the courts and the judicial appointment process. Toobin raises important questions about the role judges have played and should play in reform movements, all while suggesting - echoing several contributors to The Constitution in 2020 - that the new frontier for change may not be the courts, but popular politics.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 3)

Responding to Jeremy Kessler's Counterpoint
Point: Daniel Winik
Thanks, Jeremy, for a well-reasoned counterpoint. We seem to agree on many fronts—and in particular on the wisdom of campaigning for marriage equality state by state, rather than aiming to achieve it nationally in one fell swoop. In that vein, I think both of us would endorse Bill Eskridge and Darren Spedale’s view that now is not the time for a federal Equal Protection challenge to Proposition 8.

Jeremy addressed mainly the legislative element of incrementalism, rather than the federalist element, so I’ll focus my response on that contested ground.

Let me begin with a clarification: I do think courts are relevant to the project of marriage equality. Few of this country’s civil rights victories have come without judicial action, and the progress so far toward marriage equality has been no exception. I also agree that progressives should not give up on “a jurisprudence of positive rights” (even if Jeremy’s invocations of Swann and Green seem a bit too hopeful in the wake of Parents Involved [full text]). My point is simply that progressives should favor a legislative approach where such a strategy is feasible.

I’ll anticipate a question from Jeremy: when exactly might the judicial recourse be appropriate? Progressives can take to the courts, I suggest, when a) they’ve tried and failed to gain traction in the legislature, and b) a judicial solution would not radically outpace the progress of public opinion. These conditions are likeliest to prevail where legislative support for marriage equality has for whatever reason lagged behind popular support. Rhode Island—whose legislature has so far ignored sixty percent of voters — appears to be the best candidate for a judicial approach today.

Recourse to the courts should be rare, because it carries strategic risks much graver than Jeremy has acknowledged. While I agree with him that “[j]udge-made law often meets popular resistance,” I don’t agree that “this resistance may itself prove an important catalyst for positive democratic change.” History has proven the opposite.

The reason is that controversial decisions do not energize both sides equally. As Jack Balkin has observed, “success by social movements in reshaping constitutional doctrine can lead ironically to political demobilization” among the movement’s supporters, even as it provokes “powerful counter-mobilizations” among the movement’s opponents. Balkin notes “that Brown may have unwittingly demobilized the nascent civil rights movement for a short time,” while Roe “put the abortion rights movement continually on the defensive and required it to respond to counter-mobilizations by religious and social conservative groups.” Similar forces may have been responsible for the passage last fall of California’s Proposition 8, six months after the state’s Supreme Court had legalized same-sex marriage, as a poorly organized campaign for equal marriage rights failed to defeat the proposition’s well-financed and highly-motivated supporters.

More broadly, I think the analogy to Brown is inapposite. Yes, Brown — like Roe — sparked controversy. Yes, it pushed beyond what anyone would call a clear national consensus against segregation. Unlike Roe, however, it did not curtail a nascent democratic process. The South was hardly on the cusp of desegregating its schools when Brown came down, as the case’s tortured aftermath made clear. The current state of the movement toward marriage equality is far closer to the state of the abortion rights movement at the time of Roe, when — as Balkin writes — “many states were beginning to consider reforming their abortion statutes” but few had yet done so. This is the sort of democratic trend that progressives prod at their own peril.

Public support for marriage equality is moving — inexorably, it seems — toward majority status. There may come a day when that trend founders and progressives must reconsider their options. But we should be wary of hastening such a reversal by telling voters that their views don’t matter. The judiciary may be the ultimate guarantor of constitutional rights, but for now, progressives can best secure marriage equality by taking their fight to the ballot box and keeping it out of the courthouse.

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