Publication Date

2019

Publication Title

Public Law & Legal Theory

Abstract

Our Republic these days is riven by divides about what equality demands of us as private and public actors. Consider just a few recent examples:

• Harvard University is challenged in federal court for preferring African-Americans over other racial minorities, especially Asian-Americans, in their admissions pool.1 Harvard’s flagship law review, meanwhile, faces its own suit over its preferment of minority candidates.2

• Virginia’s Governor Ralph Northam and its Attorney General Mark Herring are swept up into political controversy by news that both dressed in ‘blackface’ during their college or medical school days.3 The historical significance of ‘blackface’ is pivotal to these debates; the fact that Northam and Herring are white forms a necessary predicate to the controversy.

• President Donald Trump issues an executive order restricting entry to nationals of several Muslim majority countries. The order is challenged several times in federal court as a discriminatory policy at odds with the Equal Protection component of the Fifth Amendment. Immigration-related deference doctrines, however, preclude close scrutiny of the intentions animating the order.4 In part because it employs a nationality-based criterion rather than a faith-based criterion on its face, a revised order is ultimately upheld.

• A proposal by Massachusetts Senator and presidential hopeful Elizabeth Warren to impose a “wealth tax” is immediately condemned as a reflection of mere “resentment” and “envy” by the less-well-off.5 Warren’s putatively egalitarian proposal is also attacked on the ground that it will fail to address its putative target—economic inequality.6

Each of these national controversies turns on a claim for equality or an allegation that a person or institution has failed to honor the command of equality. Although they have been selected from a narrow temporal band, they nonetheless evince the present heterogeneity of equality-based arguments tendered in the public sphere. Often, albeit not inevitably, equality arguments in public debate are entangled with legal or constitutional arguments. But no one partisan formation holds a monopoly on equality talk. Just like identity politics more generally,7 equality claims are articulated on all sides of the ideological spectrum of American politics. An objection from “equality,” as a result, can channel a varied and incongruous array of challenges to legal, personal, and institutional arrangements, employed by conservatives, libertarians, liberals, and progressives alike. We are thus bound together by a conceptual vocabulary. We are also divided in its applications.

The idea that equality is a deeply plural concept is not new. 8 The related idea that equality standing alone is indeterminate,9 and hence must be specified and clarified rather than simply being taken as a given, has also been gaining ground in recent years with the publication of several scrupulous studies by political theorists and legal scholars of equality and the related concept of discrimination.10 By contrast, the idea that equality is dispensable for moral and ethical critique and for public-policy reform is not a familiar proposition. It is rather a novel and challenging idea. Yet that is the core claim of Robert L. Tsai’s Practical Equality: Forging Justice in a Divided Nation. Tsai’s central proposal to discard equality as an otiose criterion for legal and political strategy is at once surprising and also provocative in itself. That it should come from a respected and accomplished progressive scholar is even more noteworthy, which renders the book more worthy of close consideration.

My aim in this review is to examine the idea that equality is a dispensable term in contemporary legal, ethical, and political debate. Such a claim clearly cannot rest on an observation of equality’s disutility or its irrelevance to observed debates. Plainly, many believe it indispensable. Rather, it must hinge on the prediction that some set of normative goals is better achieved by abandoning equality talk in favor of substitutes. This is Tsai’s approach. He aims in effect to short-circuit difficult theoretical inquiries by asking directly how equality values are best advanced on the ground. Instead of embarking on the controversial and conceptually arduous task of specifying the material conditions or moral coordinates of equality, Tsai proposes that we abandon that “quest” (p. 230). In its place, he suggests, we should work for “a form of pragmatism to protect our progress on equality and to find other ways of doing justice when we have trouble agreeing to do it explicitly” (p. 37). To lend substance to this proposal, Tsai develops in granular detail four alternatives for equality: due process, minimal rationality, anti-cruelty, and free speech. I will call these equality’s proposed understudies. They can be understood as legal or ethical claims, or even less ambitiously as political slogans. In either capacity, they are to be yoked to the pikes of lawyers and party leaders in lieu of equality talk as they charge into battle. In Tsai’s view, the best way to sustain and even advance equality is to abandon direct talk or action oriented toward it and instead to take on the garb, however ill-suited, of its four understudies. Equality talk itself, he intimates, can be disregarded as functionally unfit to the task at hand.

Even if one does not embrace his view—and for reasons I hope to make plain, I don’t—Tsai’s bracing polemic for equality’s redundancy casts fresh light on familiar terrain. Fifty-odd years ago, arguments against the desegregation of schools hinged on the perceived risk of “mingling” of the races and the attendant downfall of the “Southern white race.”11 Today, the same arguments about racial purity—and, by implication, racial hierarchy—are proffered in defense of the harsh and selective enforcement of immigration law against migrants on the southern (but not northern) border.12 Now, as then, with the political headwinds seemingly pressing against emancipatory change, there are many progressives and liberals who would seek shelter in any port: Tsai’s offer of alternative instruments to achieve equality will seem timely and needful to such readers. Although Tsai does not draw upon it, the history of political thought also provides ballast for his argument. It was not until the eighteenth century that claims about equal entitlements based on a common humanity became a lodestar for political action and arguments.13 If equality is indeed an innovation in political thought, there may be no reason to maintain it as a central term. Practical Equality therefore serves as an opportunity for discerning precisely what work the term ‘equality’ does that its understudies cannot. While I resist the idea that equality can be abandoned as a central term of legal or political debate, and while I query its fungibility with other moral ideals, I nonetheless walk away from Tsai’s fine work with many valuable insights. Even if it does not persuade all of its readers, therefore, Practical Equality nonetheless provides a valuable opportunity to consider how equality can most effectively be deployed.

This Review proceeds as follows. Part I summarizes Tsai’s core claim and situates it in the context of ongoing political and legal developments. Part II then critiques Tsai’s claim by evaluating his use of equality and the adequacy of his proposed understudies. I suggest that none of these understudies can do the salutary work Tsai hopes. In particular, I argue that the failures of human sympathy that consistently undermine the progressive equality project (a project to which Tsai seems to ascribe) will equally puncture the proposed understudies. A final, brief Part III reconsiders how equality might be analyzed and deployed as a regulative ideal in modern American politics and law.

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711

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