Equality, race discrimination, and the Fourteenth Amendment.

• Author: Harrison, John (British inventor)
• Position: Response to Michael W. McConnell, Virginia Law Review, vol. 81, p. 947, 1995

In Job God implies that he, unlike his interlocutor, can catch Leviathan on a hook.(1) Maybe it is presumptuous for mortals to suggest that the actions of government can be disciplined by fine legal distinctions devised by human artifice. Michael McConnell's article, however, asks us to try.(2) McConnell's historical claims are ably discussed elsewhere.(3) I will try to improve our understanding of a technical legal point on which the argument for Brown rests: the claim that the Fourteenth Amendment, within its area of application, forbids all race-respecting rules, rather than just those race-respecting rules that do not treat people of different races symmetrically. If that is true, and if public education is a privilege of state citizenship, then the argument in favor of Brown is very strong.(4) My approach to this question will be a bit roundabout, but I think the detour will be a fruitful one. As to the specific problem of separate but equal, my suggestion is that proponents of Jim Crow-type laws, which discriminate by race but do so symmetrically, may have believed that their understanding of the Fourteenth Amendment better accommodated the fundamental fact that the amendment does not refer to race, color, or previous condition of servitude. I think that argument is incorrect, however, and if the amendment does indeed yield some kind of ban on race discrimination, its text is most plausibly read as a ban on all such distinctions, with no exception for symmetrical discrimination.

1. EQUALITY AND DISCRIMINATION

   Analysis of the Fourteenth Amendment involves two different kinds of constitutional rules: those that require equality among all persons (or all citizens), and those that forbid discrimination. Although these are thought to be closely related, they exhibit important differences.

   1. EQUALITY AS A SIDE EFFECT OF RULES

      How might the Constitution go about requiring that all citizens be treated the same with respect to some subject matter? One approach would be simply to lay down rules concerning that subject matter. Such rules, if put in universal form, will produce at least one description under which everyone is the same.(5) If the rule is that the Ministry of Fruit must give everyone an apple, and the rule is complied with, then everyone will be the same as to the question, whether one has been given an apple. If the rule is that no one may commit arson (or sleep under a bridge), then everyone will be the same as to the question whether one is allowed to commit arson or sleep under a bridge. To continue in that vein, all individuals have the same jury trial right under the Sixth Amendment in that there is a formulation of the jury trial provision that applies to everyone.

      With sameness, of course, comes difference. If everyone is given one apple, it is very likely that people will differ as to the extent to which the government has satisfied their hunger for apples. If everyone is forbidden to commit arson, people may differ in the extent to which the government has forbidden their livelihood; it is a cliche to point out that under the bridge law people will differ in the extent to which the government has kept them from sleeping where they would like to sleep. Moreover, there can be difference within sameness--some people may get bigger apples than others, and vagueness about sameness--if A receives an apple and B receives the halves of two different apples, it may not be clear whether they have both received an apple.

      The important point, though, is that rules can easily produce sameness under some description without mentioning sameness or equality. Anyone in 1866 who actually thought that the Privileges or Immunities Clause of the Fourteenth Amendment established certain rules of private law for American citizens also thought that it established the same rules of private law for all American citizens; on some description that would have been right.(6) Rules that by their terms apply to everyone, or all members of a specified group, produce equality of a kind among the people to whom they apply.

   2. REQUIREMENTS OF EQUALITY

      When the Fourteenth Amendment was being drafted, however, it was generally agreed that the federal Constitution should not establish private law for the States, or empower Congress to do so. The States were to be left with much of their discretion as to private rights. One way to describe the Republican program is to say that the States were to retain their discretion concerning private law but were to lose the power to classify their citizens; they could still determine what the rights of citizens were to be, but they had to give those rights to everyone.

      One form of rule is often thought to correspond to that condition: everyone must be equal as to X. The rule, "the Ministry of Fruit must give everyone the same number of apples," has that form. The Equal Protection Clause also has that form: no State may deny any person within its jurisdiction the equal protection of the laws. "Everyone must be equal as to X," can be called a universal equality rule. Such rules have several noteworthy features. First, as students of normative equality theory know, the important work is done in the conceptualization of X.(7) That conceptualization provides the description under which everyone must be the same. Its residue gives the ways in which they may be, and to some extent must be, different.

      Second, as that last sentence suggests, some universal equality rules are nonsense. "Everyone must be equal as to X," cannot be complied with for some X's. It is possible to provide for everyone the same number of apples (even if that number has to be zero). It is almost certainly not, however, possible to provide for everyone the same outcome on the subject of apples. Again, if everyone is given the same number of apples, people will differ in the extent to which their apple hunger is gratified. "Everyone must be equal as to everything," which means that everyone must be the same (or must be treated the same) on every description, is thus nonsense.(8) Difference in, difference out. A corollary to this point is that just as some universal equality rules are impossible to comply with, others are trivially easy to comply with. "Everyone must be the same in some way" is an example of the latter category.

      Third, universal equality rules entail more specific equality rules. If everyone must be given the same number of apples, then individual men and women must each be given the same number of apples. If all citizens must be given the same number of apples, then black and white citizens must each be given the same number of apples. The point can be formulated in more familiar terms this way: if no distinctions...