The anticaste principle.

• Author: Sunstein, Cass R.
• Position: Visions of Equality: The Future of Title VII

It is sometimes suggested that there is a sharp opposition between "liberty" and "equality."(1) If the law forbids racial discrimination in employment, it may promote equality, but perhaps it will simultaneously interfere with liberty. If the law requires wealthy people to transfer some of their income to poor people, it may promote equality, but it may also undermine liberty. If a health care program ensures universal access to health care, it may promote equality, but it could also raise serious doubts from the standpoint of liberty. The tension between liberty and equality often appears deep, and it plays a large role in American political and legal thought.

But before accepting the alleged opposition between liberty and equality, we should observe that there are many possible understandings of liberty and equality. These understandings reveal not disputes about dictionary definitions but diverse substantive judgments that need to be identified and assessed. Different conceptions of the two values will lead to different views about their relationship. For example, the term equality could refer to freedom from desperate conditions, in the form of minimum welfare guarantees; to a ban on discrimination on certain specified grounds; to the idea that every citizen should have the same power over political outcomes, as in the one-person, one-vote rule; to similar starting points or basic opportunities for every citizen; to similar incomes or wealth; to similar incomes unless disparities can be justified as beneficial for all; or to much more.

The same is true for liberty. That capacious term could refer to the basic political rights of free speech and free elections. It could include the guarantees of a fair system of criminal justice, in which rules are laid down in advance and a defendant has a right to a fair trial before an independent judge. It could entail social respect for the outcomes of processes in which citizens pursue their various conceptions of the good, given market forces, existing common law rules, existing preferences, and existing distributions of wealth. The term liberty could refer to a system that ensures autonomy in the formation of preferences and beliefs by providing a decent education for all and by counteracting unjust background conditions. It could refer to much more.

We can readily see that some conceptions of equality are quite compatible with - indeed identical to - some conceptions of liberty. For example, libertarians, who may appear to oppose equality, insist on equality of an important kind; they want to ensure that all citizens have an equal right to pursue their own ends.(2) An understanding of equality lies at the heart of the libertarian creed. Freedom from desperate conditions, often treated as an egalitarian idea, is an understanding of liberty as well. Those who emphasize autonomy in the formation of preferences are speaking of both equality and liberty; they want to ensure that unjustified inequalities - inequalities based upon wealth, race, or sex, for example - do not limit the free development of individual personality.

In these circumstances, it is important to be quite careful before seeing any tension between equality and liberty. Tension exists only when we specify conceptions of these broad terms that cannot peacefully coexist. Perhaps such incompatible conceptions cannot be defended. Perhaps the best conceptions of equality are entirely compatible with the best understandings of liberty.

In this essay, I seek to defend a particular understanding of equality, one that is an understanding of liberty as well. I call this conception "the anticaste principle."(3) Put too briefly, the anticaste principle forbids social and legal practices from translating highly visible and morally irrelevant differences into systemic social disadvantage, unless there is a very good reason for society to do so. On this view, a special problem of inequality arises when members of a group suffer from a range of disadvantages because of a group-based characteristic that is both visible for all to see and irrelevant from a moral point of view. This form of inequality is likely to be unusually persistent and to extend into multiple social spheres, indeed into the interstices of everyday life.

I do not claim that this is the only valid understanding of equality. On the contrary, there are many such understandings. Our Constitution's equality principle is plural rather than singular. It has numerous manifestations;(4) a unitary conception of equality would not exhaust the term as it operates in American legal and political discussion. Consider political equality and principles disallowing discrimination on the basis of religious conviction or prejudice. These conceptions of equality warrant support, and they have considerable grounding in our constitutional traditions.(5)

I emphasize the anticaste principle, not because it exhausts the concept of equality, but because it captures an understanding that has strong roots in American legal traditions, has considerable independent appeal, is violated in many important parts of American life, and fits well with the best understandings of liberty. In other words, the anticaste principle is an important and perhaps insufficiently appreciated part of the lawyer's conception of equality under the American Constitution.(6)

In describing the anticaste principle, I also offer some information about racial and gender disparities in the United States. I do so because it is hard to have a sense of the world of discrimination without having a good sense of the data. Legal discussions about equality are too often and too exclusively conceptual, attempting to offer perspicuous descriptions of discrimination or inequality without a sufficient discussion of the facts that underlie either the problem or the solutions.(7) I will not offer much detail about solutions here, but I do hope that my presentation of information about existing inequalities will help to illuminate the problem.

I emphasize as well that enforcement of the anticaste principle is mostly for legislative and executive officers and only secondarily for courts. Sometime in the late nineteenth and early twentieth centuries, there was a large-scale transformation in the substance of the constitutional equality principle. This is a long and as-yet-untold story. A set of amendments originally designed at least in part to eliminate social caste eventually became a requirement that legislation be reasonably related to legitimate state interests - a requirement whose original home was the Due Process Clause.(8) The transformation makes some sense if we think about the limited capacities of the judiciary. Taken seriously, a full-blown anticaste principle is beyond judicial competence. But if the Constitution speaks to nonjudicial actors as well, the broad commitments of the Fourteenth Amendment have a different meaning outside the courtroom. It is possible, in short, to insist on the continuing importance of one of the great unused provisions of the Constitution, Section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."(9)

1. FALSE STARTS

   In this Part, I discuss three understandings of the equality principle. All three have played a major role in public and sometimes legal debate. The first stresses the advantages of free markets. The second relies on respect for existing preferences. The third and most important sees the equality principle as a ban on unreasonable distinctions between social groups. As we will see, the difficulties with each of these understandings help lay the foundation for the anticaste principle.

   1. Markets?

      In light of the extraordinary recent outburst of international enthusiasm for free markets, it should not be surprising to find a resurgence of the view that all invidious discrimination on the basis of race and sex will be eliminated by laissez faire.(10) On this view, the appropriate approach for law would be to eliminate constraints on market ordering and to rely solely on property rights, voluntary arrangements, and freedom of contract to produce equality.

      In many ways, free markets are indeed connected with equality on the basis of race and sex. Legal barriers to female and black employment are a form of government intervention in the market, and they have often been an effective and severe hindrance to equality. Antifemale and antiblack cartels, especially when government-sponsored, can drive down both wages and employment for women and blacks. In a free market, by contrast, all people should succeed to the extent that they are able to perform their respective functions - as employers, employees, co-workers, and customers. It is unnecessary to stress that women and blacks often perform as well as or better than men and whites. Once discriminatory laws are eliminated, free markets may therefore accomplish a great deal in breaking down a system of inequality. In South Africa, for example, it is most doubtful that the system of apartheid could have survived under free markets. Too many employers would have found it desirable to hire blacks; too many companies would have found it in their economic interest to serve people on a nondiscriminatory basis.

      The point can be made through a simple example. Suppose that an employer prefers to hire only men; suppose he believes that women belong in the home. This employer should face severe obstacles to continued profitability and, in the end, might even be driven out of the market. An employer who restricts himself to one social group will be placed at a serious disadvantage; it would be as if he refuses to hire people whose last names begin with a particular letter. If the employer is sexist or racist, his "taste" for discrimination operates as an implicit tax on the operation of his business. To say the least, self-imposed implicit...