Posted: July 10, 2014
A review of Equality Under the Constitution - Reclaiming the Fourteenth Amendment, by Judith A. Baer
his book confirms a very old lesson: Some people are never satisfied. Over the past three decades, the federal judiciary has seized on the Fourteenth Amendment as a weapon to demolish hundreds of state and local laws, as a warrant to rewrite statutes and appropriate money, as a license to take over the management of school districts, prisons and hospitals. But Professor Baer protests that the courts have "not overextended the amendment" but "shackled it," given it a reading that is "crabbed and confined." In these same decades, the Supreme Court has developed an astonishingly free-wheeling style of adjudication, a jurisprudence of free association, embracing and discarding new doctrines with equal abandon as occasion suits. But Professor Baer complains that the Court's approach to the Equal Protection clause is unduly "rigid" and altogether too legalistic. While Congress considers retaliatory constitutional amendments and a variety of statutory court-curbing proposals, this book launches a demand for more judicial activism. "O brave new world, That has such people in't!"
The preface to Equality Under the Constitution informs readers that the author "considers the term 'bleeding heart liberal' a compliment" (p. 18), and that because of her "commitment to feminism" ("my deepest political conviction"), she has come "to regard the traditional family with something less than reverence." The book undertakes a searching scrutiny of the original meaning of the Fourteenth Amendment and discovers-surprise!-that it implies just exactly what an author of this description would like to find in it. Specifically, we learn that the Amendment poses no barriers whatever to reverse discrimination against white males; that, apart from affirmative action to benefit women, it precludes any differential treatment of the sexes; that it prohibits any restrictions on homosexual activity and demands a suspicious watch on the authority of parents and schools. Also, the Amendment gives the handicapped a constitutional right to whatever government services they may need and gives the elderly a constitutional right to personalized fitness hearings before the imposition of mandatory retirement. But, after all, manipulating constitutional doctrine to reach the desired results has become an insultingly easy game. And one must grant that Professor Baer's fantasies are more imaginative and, on the whole, more consistent than those of, say, Harry Blackmun. Is there really anything else one can say?
Like many dystopias, Equality Under the Constitution may at least have a certain heuristic value. By rationalizing and systematizing-well, anyway, extending-the trendier impulses in recent jurisprudence, Baer's arguments do provide graphic illustrations of the self-refuting logic behind these trends. The book as a whole testifies to the flight of contemporary constitutional "law" from the bounds of law itself. It may justify more than a brief glance if it provokes reflection on the reasons for this flight and the reasons it is ultimately so futile.
The first several chapters of Equality Under the Constitution belabor the unexceptional point that the principle of "equality," in the American constitutional tradition, does not presume that all people have equal capacities or comparable characteristics. Rather, Baer reminds us, the Declaration of Independence and the Bill of Rights rest on the conviction that people are equal in rights. Only Baer characteristically prefers to speak of "entitlements" rather than rights. And in place of Locke's appeal to the "equal right that every man hath to his natural freedom," she invokes Ronald Dworkin's reformulation that each person is "entitled to equal respect and concern." The traditional formula focused attention on the content of individual rights. Thus until recent decades, the Supreme Court almost never had occasion to give independent force to the Fourteenth Amendment's guarantee of the "equal protection of the laws": "Equal protection" was understood to mean equal claim to the enforcement of one's rights, but cases then turned necessarily on judicial construction of the particular rights in question. Baer's approach is designed to be more encompassing. But in refusing to ground "equal concern" in concern for particular rights, it leaves "equality" with no solid grounding at all.
The underlying difficulty with a direct appeal to "equal protection" is that all laws classify and categorize to some extent, all provide that people will be differently treated depending on their conduct or their circumstances. How are courts to decide when these "discriminations" are acceptable and when they are not, without calling every law into question? By the early 1970s, the Supreme Court had elaborated two general situations in which statutory distinctions should be questioned by courts in the name of "equal protection." First, where these distinctions involved what the court considered inherently "suspect classification"-classifications by race being the preeminent example. Second, where statutory demarcations affected access to what the Court considered "fundamental rights"-though not necessarily rights independently guaranteed by the Constitution, laws governing voting qualifications being the leading example here. The problem was that neither approach had any obvious stopping point.
Given the historical origins of the post-Civil War amendments, it was certainly reasonable for the Court to regard the Fourteenth Amendment as imposing a near-categorical ban on racial classifications. But during the 1970s, the Court began to experiment with new quasi-suspect categories. Some laws classifying by sex were struck down, others sustained as reflecting a "compelling"-though never overwhelmingly compelling-"state interest." The same ad hoc approach allowed the Court to strike down some laws differentiating citizens from aliens and some laws differentiating legitimate from illegitimate children, while upholding many others.
The "fundamental rights" strand of Equal Protection doctrine began to follow a comparably wobbling course, as the Court advanced sweeping demands for equal access, only to retreat in the face of some "compelling" basis for restriction. Thus the Court adamantly rejected even minimal durational residency requirements for voting in local elections (unfair discrimination against transients!) but decided that voting in party primaries could, after all, be restricted to registered party members of some duration (just too bad for new members!).
Equality Under the Constitution pursues the logic of these decisions with a vengeance. Baer protests that the Court has been too timid in declaring "suspect classifications": She would add age, "sexual orientation," mental and physical impairment-perhaps others-to the list. Any classification that "stigmatizes," she holds, ought to be scrutinized by the courts. But, of course, she would not impose anything so "rigid" as a near-categorical ban on such classifications: she would permit racial classifications for affirmative action and "justified" restrictions on children or the handicapped. Similarly, Baer urges that the "fundamental rights" aspect of Equal Protection analysis be replaced by an open-ended regard for "equality" in relation to laws touching important personal "interests," like "jobs, food and housing." Baer's overall approach "does not," she concedes, "provide slots into which we can automatically fit cases once we have decided what is involved . . . but it does allow us to deal with more issues of equality than the old model did" (p. 281). This is a very considerable understatement. In truth, it is hard to see how Baer's open-ended formulas provide any real limits on judicial power or any solid guidance for judicial decisions.
Near the very end of the book, Baer assures us that an "immense area of legislation is left untouched by [her] approach," including "nearly all of the laws regulating business and commerce, the traffic and motor vehicle laws, the tax laws, the zoning laws, and so many . . . other policies that have been presumed valid and can continue to be" (pp. 281, 280). But she offers no argument whatever to support this assurance, blithely assuming that readers will share all her own prejudices about what are "trivial" inequities or "less-than-substantial interests." Thus she demands individualized fitness hearings for the elderly to prevent mandatory retirement laws from perpetuating "stigmatizing stereotypes" about the elderly. With equal logic one might demand that the progressive income tax-with all its "stigmatizing" and "stereotypical" assumptions about the rich-be replaced by individualized hearings on actual capacity to pay. Baer is indignant that homosexual teachers can be fired though there is no clear proof they do harm to students. Well, what about merchants who are forced to move or prevented from expanding their stores by zoning rules? Don't zoning codes risk "stigmatizing" commercial activity and isn't property a "substantial interest" any more? And come to think of it, aren't there a lot of questionable distinctions and restrictions imposed by health, safety, and environmental laws-and don't these "stigmatize" and "stereotype" all kinds of honorable businessmen as "safety menaces" or "polluters"?
Evidently the "bleeding heart liberal" judge will just know a case deserving "strict scrutiny" when she sees it. And when she sees it, Baer would have her consult the same infallible political conscience in making her decision. Thus Baer ridicules the notion that racial classifications are impermissible when they give "favored treatment" to minorities. There is no reason, she insists, for courts to intervene in the political process to protect the white majority-though she is equally emphatic that courts must indeed intervene to protect the female majority, even from itself. Reverse discrimination is no "public insult" to whites, and besides, "any white person alive in this country today has reaped unearned rewards because of race" (p. 139). And as for the charge that affirmative action is patronizing, we need only recall that "for minorities the choice is not between favored treatment and succeeding on one's own; it is often between favored treatment and exclusion" (p. 143). In other words, it would be bad taste to question whether blacks were "stigmatized" or "stereotyped" by special-preference policies because, after all, they cannot compete on their own.
No End to Rights?
So in place of clear constitutional standards, we have all the predictability and dependability of progressive political fashion. The principle of "equal respect and concern" can encompass everything-except consent (which is required not even for taxing and spending). The handicapped need an array of special services and accommodations to exercise their rights (or enjoy their "entitlements"), Baer reasons, so government must have a constitutional duty to provide-whatever the cost, whatever the taxpayers' resistance to paying. Education should be a fundamental right; different school districts have differing tax bases to support educational expenditures, resulting in "unequal educational opportunity" from one place to another; consequently, "Baer concludes, the states or the federal government must have a constitutional duty to provide equalizing resources. (And why not a constitutional duty to abolish private education or to limit parental expenditures on educational extras, just to ensure opportunities are really equal?) Anyway, "If society is truly concerned with the dignity of all its members," Baer hectors, it is "false and dangerous" to suggest that such claims must be weighed against other fiscal concerns by a representative body (p. 194).
Baer's casual disregard for the principle of consent-once regarded as the bedrock of constitutionalism-is of course related to her general impatience with legal formalism.
Eager to break down what she considers more formalistic barriers to true "equality under the law," she forgets that all law is inevitably a matter of formal reasoning, abstracting from the fathomless complexities of life-else it is merely an approving word for power. She also forgets that any plea for equality must itself derive from a rather formalistic conception of the sense in which all people are equal. Disdaining the principle of natural liberty from which the principle of consent is derived, Baer tries to found constitutional norms on "entitlements to equal concern and respect"-a jargon term for a government of good intentions. In this understanding, the pursuit of equality does not require the consent of those forcibly equalized and no need to impose any settled constraints on those wise few, those judges advised by Professor Baer, who are best able to discern the changing requirements of equality.
Equality Under The Constitution concludes with a lament that the current Supreme Court shows few signs of receptivity to its various suggestions. One sometimes wonders why the author wants to entrust the enforcement of her vision to judges, anyway, rather than hand it directly to a revolutionary provisional government.