The Scope of Formal Equality of Opportunity

• Date: 01 December 2014
• Author: Sonu Bedi
• Published date: 01 December 2014
• DOI: 10.1177/0090591714538267
• Subject Matter: Articles

Political Theory

2014, Vol. 42(6) 716 –738

© 2014 SAGE Publications

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DOI: 10.1177/0090591714538267

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Article

The Scope of Formal

Equality of Opportunity:

The Horizontal Effect

of Rights in a Liberal

Constitution

Sonu Bedi1

Abstract

Should a liberal constitution constrain the racially discriminatory actions of

state as well as nonstate employers? This essay answers in the affirmative,

arguing that once we take seriously the right to nondiscrimination on the

basis of race in terms of employment, we realize that such a constitution

must constrain the actions of both. In doing so, this essay draws from John

Rawls’s four-stage sequence, a sequence that suggests one way philosophical

principles translate into constitutional design. A Theory of Justice is the go-to

theory for a wide range of political issues from a perspective of liberal theory,

but scholars have paid less attention to it and comparative constitutional

law. I take up this neglected inquiry by focusing on the distinction between

the horizontal and vertical effect of a right not to be discriminated against

on the basis of race in matters of employment. My analysis draws from the

United States Constitution and the Constitution of the Republic of South

Africa. A vertical effect constrains state power: a right to nondiscrimination

is violated only when a state or public body discriminates on the basis of

race. A horizontal effect constrains nonstate actors: a private employer may

violate rights by discriminating on the basis of race. I argue that, in line

with the South African Constitution, Rawls importantly adopts a horizontal

1Dartmouth College, Hanover, NH, USA

Corresponding Author:

Sonu Bedi, Department of Government, Dartmouth College, HB 6108, Hanover, NH 03766,

USA.

Email: Sonu.S.Bedi@dartmouth.edu

538267PTXXXX10.1177/0090591714538267Political TheoryBedi

research-article2014

Bedi 717

effect of the right not to be discriminated against on the basis of race by

ensuring formal equality of opportunity. His theory of justice suggests that

a liberal constitution ought to constrain the racially discriminatory actions

of both state and nonstate (private) employers. This, in turn, represents an

important response to racism that occurs in the private sphere.

Keywords

Rawls, formal equality of opportunity, horizontal effect, racial discrimination

Debates in liberal theory over equality are usually about its content or sub-

stance. Does equality demand more than just a commitment to nondiscrimi-

nation? Does it also demand an equality of resources? Or even an equality of

outcome? Answers to these questions may have implications for written con-

stitutions. If equality entails that individuals are entitled to certain basic lev-

els of food or shelter, liberal constitutions ought to contain economic or social

rights to such resources.

This essay is not about the content or substance of equality. It is not, for

instance, about whether constitutions ought to have economic or social rights.

Rather, it is about the scope or application of the commitment to treat indi-

viduals equally. Put differently, instead of focusing on what equality means,

by “scope” or “application,” this essay focuses on whom this commitment

constrains. Does it just constrain the state or nonstate actors as well? In par-

ticular, this essay analyzes the scope of a right not to be discriminated against

on the basis of race in terms of employment. This principle of nondiscrimina-

tion, one that excludes discriminatory employment actions based on racial

inferiority, represents the bare minimum of a theory of equality. I fully realize

that equality may demand much more. But by considering just a commitment

to formal equality of opportunity, one that is an uncontroversial part of any

liberal account of equality, I seek to focus on the issue of scope or applica-

tion. The motivating question of this essay is whether a liberal constitution

ought to constrain the discriminatory actions of state as well as nonstate

employers.

This essay answers in the affirmative, arguing that once we take seriously

the right to nondiscrimination on the basis of race in terms of employment,

we realize that a liberal constitution must constrain the actions of both. This

essay draws from John Rawls’s four-stage sequence, a sequence that suggests

one way philosophical principles translate into constitutional design. In fact,

Rawls specifically contemplates that his theory ought to serve as the basis for

a “just constitution”1 (TOJ: Sec. 31: 172–76]; PL: 397–98; JF: 48). He envi-

sions a theoretical constitutional convention where individuals adopt