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

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 Science (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 Junior 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. T HE E GALITARIAN C ONCEPTION OF THE R ULE OF L AW , A S YNOPSIS .. 1027 B. A GAINST THE F ORMAL C ONCEPTION OF G ENERALITY ....................... 1028 C. P UBLIC R EASON : E XPRESSIVE .......................................................... 1036 D. F INDING THE E XPRESSIVE C ONTENT OF A L AW ................................. 1038 1. Reasons and Meanings ......................................................... 1038 2. A New, Distinctively Legal Approach .................................. 1040 E. P ROOF OF C ONCEPT ........................................................................ 1045 F. P UBLIC R EASONS AND I NSULTS ........................................................ 1047 II. THE RULE-OF-LAW CRITIQUE OF THE LITERACY TESTS ....................... 1049 A. A F IRST P ASS AT THE A RGUMENT , AND THE N EUTRALITY O BJECTION ..................................................................................... 1051 III. THE RULE OF LAW AND SOCIAL FACTS................................................. 1056 A. R ULE - OF -L AW J UDGMENTS D EPEND ON N ONLEGAL S OCIAL F ACTS ..... 1056 B. T HE D ISJUNCTIVE C HARACTER OF R ULE - OF -L AW C OMMANDS ........... 1058 IV. THE RULE OF LAW AND THE CRIMINALIZATION OF POVERTY .............. 1058 A. M AJESTIC E QUALITY ? ..................................................................... 1058 B. T HE R ULE - OF -L AW C RITIQUE OF E CONOMIC I NJUSTICE ..................... 1061 V. A PRINCIPLE RUN OUT OF CONTROL? ................................................. 1064 VI. THE RULE OF LAW FOR THE [WO]MAN OF THE LEFT .......................... 1071 A. T WO C ONCEPTS OF E QUALITY ......................................................... 1072 B. T HE D ANGERS OF P OWER ................................................................ 1074 C. T HE G ENETIC F ALLACY IN THE M ARXIST C RITIQUE OF THE R ULE OF L AW .............................................................................................. 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 Albion 1 “One Law for the Lion & Ox is Oppression” –Blake, The Marriage of Heaven and Hell 2 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). 1024 IOWA LAW REVIEW [Vol. 99:1021 prevails . . . becomes at last permanent and legitimate by the establishment of property and laws.” 8 This is a theoretical problem at the heart of liberal democracy. The rule of law is ordinarily understood to be a basic condition for the legitimacy of liberal states. 9 Its demands are expressed in provisions of the U.S. Constitution like the Due Process and Equal Protection Clauses. 10 And its ideals are deeply embedded in the Anglo-American legal tradition, from Magna Carta through the common law. 11 Indeed, West has suggested that the “formal equality” model of reasoning about law, the practice of categorizing cases with respect to similarity and dissimilarity with the object of treating “like cases alike,” is just part of what makes legal reasoning legal reasoning, as opposed to some other kind of reasoning. 12 If the rule of law is hostile to genuine equality, then that hostility is at the heart of our constitutional order. 13 In this Article, I work toward relieving the worries about this putative hostility. I develope an egalitarian conception of the rule of law, which I began in previous work. 14 Here, my main task is to answer the complaint about formal equality by showing how the rule of law actually promotes genuine, substantive equality. I respond to these important concerns of Bell, MacKinnon, Horwitz, and many others by clarifying how we determine whether a society does or does not respect the rule of law, and using these clarifications to show that 8. JEAN JACQUES ROUSSEAU, WHAT IS THE ORIGIN OF INEQUALITY AMONG MEN, AND IS IT...