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

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).