Publication Date

2024

Abstract

The Supreme Court relies increasingly on anti-classification rules to implement the Constitution’s commands of even-handed state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—triggering the familiar strict scrutiny analysis. So defined, anti-classification rules now dominate Equal Protection, Free Speech, ‘dormant’ Commerce Clause, and even Free Exercise jurisprudence. The Roberts Court celebrates them as “commonsense,” citing their administrability and mechanical quality as safeguards against problematic judicial discretion.

This Article challenges this account of anti-classification rules as simple and transparent. It draws extensively on conceptual tools from the philosophy of language to elucidate the inherent complications and internal tensions of the doctrine. Defining and drawing bounds around categories such as “race” and “content discrimination,” for example, cannot be done without a theory of what philosophers of language call ‘natural kinds’ and ‘social kinds.’ And when courts identify instances of impermissible categories in legal text, they tend to fluctuate erratically between semantic and communicative theories of meaning. A careful examination of these, and other, hidden premises of anti-classification clarifies apparent doctrinal inconsistencies. Absent a systematic theorizing of such difficulties, anti-classification rules cannot be coherently or consistently applied. Reckoning with these difficulties suggests that the Court’s main normative justifications for anti-classification have a narrower reach than commonly appreciated.

Number

859

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