Equal Law in an Unequal World

Author:Paul Gowder
Position:Associate Professor of Law, Adjunct Associate Professor of Political Science (by courtesy), The University of Iowa
Pages:1021-1081
SUMMARY

The moral ideal of the rule of law is a basic principle of constitutional legitimacy, embodied in U.S. law in the Due Process and Equal Protection Clauses. Many scholars, however, have worried that the rule-of-law requirement that the laws be general—ordinarily interpreted as a command of “formal equality”—forbids states from pursuing genuine (“substantive”) equality, particularly between groups... (see full summary)

 
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1021
Equal Law in an Unequal World
Paul Gowder
ABSTRACT: The moral ideal of the rule of law is a basic principle of
constitutional legitimacy, embodied in U.S. law in the Due Process and
Equal Protection Clauses. Many scholars, however, have worried that the
rule-of-law requirement that the laws be general—ordinarily interpreted as a
command of “formal equality”—forbids states from pursuing genuine
(“substantive”) equality, particularly between groups divided by lines of
social hierarchy. They have similar worries about the Equal Protection
Clause.
In this Article, I aim to put those worries to rest. First, I show that the
formal equality interpretation of the rule of law (and of equal protection) is
logically incoherent. Then, drawing on a novel account of how to determine
the expressive meaning of a law, I show that not only are the rule of law
and equal protection compatible with egalitarian justice, but that they
positively demand at least a basic level of egalitarian justice, in the form of
the command to eliminate social hierarchies embedded in the law. From this,
I conclude that the legal ideal of the rule of law contributes to, rather than
threatens, critical projects aimed at the elimination of social hierarchy.
Political radicals, associated in the law with, inter alia, Marxism,
feminism, critical legal studies, critical race studies, and other intellectual
movements, have long been skeptical of the legal ideals traditionally
Associate Professor of Law, Adjunct Associate Professor of Political Sci ence (by
courtesy), The University of Iowa. For extremely helpful feedback, I’d like to thank participants
in the Iowa Legal Studies Workshop, the Mid-Atlantic People of Color Legal Scholarship
Conference, the Southeast/Southwest People of Color Legal Scholarship Conference, the
Arizona State University Legal Scholars Workshop, ClassCrits V, the Midwest Jun ior Scholars
Workshop at Washington University, St. Louis, and Albany Law School’s Sharing Scholarship,
Building Teachers workshop. For yeoman’s service in helping this Article out on an individual
basis and/or as part of the formal presentations noted above, I would also like to single out
Elizabeth Anderson, Marcus Arvan, Patricia Broussard, Dustin Buehler, Enrique Guerra, Peter
Halewood, Aziz Huq, John Inazu, Frank Michelman, Muriel Morisey, Eli Wald, too many of my
colleagues and friends at The University of Iowa to mention exhaustively, but particularly
including Herb Hovenkamp, Angela Onwuachi-Willig, Mark Osiel, and Alexander Somek, and
my research assistants Shawn McCullough and Estiven Rojo. Thanks are also due to the
editorial staff of the Iowa Law Review for extremely careful yet non-intrusive editing. The genesis
of this paper came from a conversation in my grad school days, sometime in 2010 or 2011,
when I was discussing my account of the rule-of-law principle of generality with my Ph.D.
advisor, Joshua Cohen, and he said “what about class?” This is my belated attempt to answer
that question.
1022 IOWA LAW REVIEW [Vol. 99:1021
associated with liberalism. This Article suggests that they should learn to
love the rule of law.
INTRODUCTION .................................................................................... 1023
I. THE IDEA OF GENERAL LAW ................................................................. 1027
A. THE EGALITARIAN CONCEPTION OF THE RULE OF LAW, A SYNOPSIS .. 1027
B. AGAINST THE FORMAL CONCEPTION OF GENERALITY ....................... 1028
C. PUBLIC REASON: EXPRESSIVE .......................................................... 1036
D. FINDING THE EXPRESSIVE CONTENT OF A LAW ................................. 1038
1. Reasons and Meanings ......................................................... 1038
2. A New, Distinctively Legal Approach .................................. 1040
E. PROOF OF CONCEPT ........................................................................ 1045
F. PUBLIC REASONS AND INSULTS ........................................................ 1047
II. THE RULE-OF-LAW CRITIQUE OF THE LITERACY TESTS ....................... 1049
A. A FIRST PASS AT THE ARGUMENT, AND THE NEUTRALITY
OBJECTION ..................................................................................... 1051
III. THE RULE OF LAW AND SOCIAL FACTS................................................. 1056
A. RULE-OF-LAW JUDGMENTS DEPEND ON NONLEGAL SOCIAL FACTS ..... 1056
B. THE DISJUNCTIVE CHARACTER OF RULE-OF-LAW COMMANDS ........... 1058
IV. THE RULE OF LAW AND THE CRIMINALIZATION OF POVERTY .............. 1058
A. MAJESTIC EQUALITY? ..................................................................... 1058
B. THE RULE-OF-LAW CRITIQUE OF ECONOMIC INJUSTICE ..................... 1061
V. A PRINCIPLE RUN OUT OF CONTROL? ................................................. 1064
VI. THE RULE OF LAW FOR THE [WO]MAN OF THE LEFT .......................... 1071
A. TWO CONCEPTS OF EQUALITY ......................................................... 1072
B. THE DANGERS OF POWER ................................................................ 1074
C. THE GENETIC FALLACY IN THE MARXIST CRITIQUE OF THE RULE OF
LAW .............................................................................................. 1077
CONCLUSION: IN PRAISE OF “MISCHIEVOUS RESULTS” ........................ 1078
2014] EQUAL LAW IN AN UNEQUAL WORLD 1023
“And are there other sorrows, beside the sorrows of poverty?
And are there other joys, beside the joys of riches and ease?
And is there not one law for both the lion and the ox?”
–Blake, Visions of the Daughters of Albion1
“One Law for the Lion & Ox is Oppression”
–Blake, The Marriage of Heaven and Hell2
INTRODUCTION
The principle that the law must be general—that it must apply equally
to all—is a fundamental demand of legal morality, associated with the ideal
of the rule of law.3 But many worry that this generality, the “formal” equality
of law, props up substantive inequalities in a hierarchical world in which
people have different capacities, endowments, and fundamental interests.
For example, if the law is forbidden to recognize that there are a dominant
race and subordinate races, and respond to those facts (e.g., with affirmative
action), it can reinforce that hierarchy, and it has the chutzpah to do so
under the very name of “equality.” Thus, Derrick Bell has claimed that
“despite law school indoctrination and belief in ‘the rule of law’—abstract
principles lead to legal results that harm blacks and perpetuate their inferior
status.”4 Morton Horwitz has said that the rule of law “creates formal
equality” but in doing so “promotes substantive inequality by creating a
consciousness that radically separates law from politics, means from ends,
processes from outcomes.”5 Catharine MacKinnon has decried the
conventional rule-of-law command that like cases be treated alike for
“tell[ing] women that they are entitled to equal treatment mainly to the
degree they are the same as men.”6 Robin West has characterized the
standard conception of the rule of law as “a serious threat to progressive,
egalitarian, and identity-based politics.”7 Nor is this a purely contemporary
worry. It goes at least as far back as Rousseau, who blamed the law itself for
entrenching and legitimating inequality: “all the inequality which now
1. WILLIAM BLAKE, VISIONS OF THE DAUGHTERS OF ALBION 9 (Robert N. Essick ed.,
Huntington Library & Art Gallery 2002) (1793).
2. WILLIAM BLAKE, THE MARRIAGE OF HEAVEN AND HELL 83 (Michael Phillips ed.,
Bodleian Library, Univ. of Oxford 2011) (1793).
3. See generally Paul Gowder, The Rule of Law and Equality, 32 LAW & PHIL. 565, 603–04
(2013) (summarizing literature on generality).
4. Derrick Bell, Racial Realism, 24 CONN. L. REV. 363, 369 (1992).
5. Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 YALE L.J. 561, 566
(1977) (book review) (emphasis omitted).
6. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281,
1290–91 (1991); see also Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New
Words, Old Wounds?, 87 MICH. L. REV. 2099, 2100 (1989) (providing another feminist critique).
7. ROBIN L. WEST, RE-IMAGINING JUSTICE: PROGRESSIVE INTERPRETATIONS OF FORMAL
EQUALITY, RIGHTS, AND THE RULE OF LAW 5 (2003).

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