The Constitution of Status– Part III
Copyright 1997 Jack M. Balkin. All Rights Reserved.
III. The Constitution and Status Hierarchies
A.The Soul of the Constitution
If status hierarchy and status competition are pervasive and ubiquitous features of even democratic societies, does the Constitution have anything to say about them? Justice Scalia’s dissent inRomer suggests one view: Because cultural struggles are cultural, they are the subject of everyday political struggle. The evolution of status relations should be left to the vicissitudes of cultural change and democratic struggle. Indeed, precisely because democracies allow majorities to rule, and because majorities tend to be of lower status than elite groups, democracy will, over time, be the greatest foe of status hierarchies and status inequalities. Gradually, the democratic process and the levelling features of democratic culture will destroy systems of social meaning that unjustly privilege some groups over others. Democracy will eventually extirpate privilege and level caste. Obviously, the Constitution must intervene where there is a “`bare . . . desire to harm a politically unpopular group.’”(88) Absent a clear showing of such animus, however, the Constitution’s role is merely to ensure that the political system does not take sides in the ongoing struggle between status groups in the zero-sum game of status competition.
Too strong a version of this call for neutrality can surely be reduced to an absurdity. Hierarchies of social status are often intertwined with and supported by distinctions of legal status. Status hierarchies have been used to define who can be a citizen, and who among the citizenry can enjoy the privileges of self-governance. The vast majority of African Americans were once held in slavery with no political rights, and even after emancipation they were effectively denied suffrage and political equality. Women were recognized as citizens from the beginnings of the republic but were for many years denied the right to vote as well as many other political rights. All of these restrictions occurred with the blessing of democratic majorities, at least as defined by existing law. The self-reinforcing character of social status distinctions mapped onto law undermines the assumption that democracies can be expected to dismantle unjust status hierarchies. Yet these examples do not refute a general policy of constitutional neutrality in cultural struggles. Rather, they might simply suggest that the Constitution demands that status hierarchies must be dismantled only to the extent that they deny citizens equal rights to vote and participate in the democratic process.(89)
But the Constitution does more than simply provide fair ground rules for cultural struggle. It also actively intervenes in some status hierarchies and requires that they be dismantled, or at the very least, that the support of law be withdrawn from them. The Constitution has an egalitarian demand, a demand which is more than a demand for equality of civil rights, and more than a demand for equality of political rights. It is a demand for equality of social status, a demand that exists even though it cannot be achieved by legal means alone. This egalitarian demand is what connects the Constitution to our founding document, the Declaration of Independence. It is the deep meaning of the American political experience. It is the soul of our Constitution.
Our constitutional tradition has understood itself as responding to this demand, albeit haltingly and defectively. In his Gettysburg Address, Abraham Lincoln noted that although our Constitution was “conceived in liberty,” it was dedicated to a proposition–the proposition that all human beings are created equal.(90) The actual words of the Declaration, of course, are that all “men” are created equal. That grammatical embarrassment, that sour note in the clarion call for equality, is also part of the meaning of the egalitarian demand. For whenever we attempt to articulate this demand, we always articulate it imperfectly.
At the time the Declaration was written, few in the Continental Congress understood the exclusion of women as an embarrassment, although more perhaps understood and felt the embarrassment of slavery. Yet this phenomenon of a document making a demand for equality, a demand that undermines itself and embarrasses the document that states it–this self-contradictory expression of an underlying ideal–is one of the central features of our political predicament. It is an apt and ironic expression of the ongoing and indeterminate demand for equality. The Constitution makes a distinction between just and unjust status hierarchies. It places itself on the side of dismantling the unjust ones. But it does not always tell us which ones are which; and our first thoughts on the matter are often transformed through further experience and reflection.
Individuals who enjoy high status do not want to surrender that status easily. They may either fail to see their privileged position in a social hierarchy, or, when called to their attention, think it entirely just. Precisely because status capital is so precious a commodity, there is no end of ways in which people can justify their social privileges to themselves. Yet the egalitarian project of our Constitution requires us to engage in an ongoing reflection on what forms of status hierarchy are just and unjust, and how best to dismantle them given the always limited and imperfect tools at our disposal. The oracle of the Declaration speaks in a hazy and unclear voice. Each of us carries away something different from her words. Each generation must come to understand what forms of social hierarchy still exist and the extent to which they are unjust. Through this experience, we eventually come to understand what we were always committed to. We will become what we in hindsight always meant to become. This is an ongoing project of self-understanding and self-governance. We Americans are not agreed on its contours today, and it is certain that we will not be agreed on it a century from now. But the project itself, the oracle, the demand, is the deepest meaning of the American political experiment.(91)
Many features of the Constitution, both in its 1787 version and as later amended, are concerned with dismantling unjust status hierarchies. I use the term “concerned” advisedly, for the Framers and Ratifiers of the Constitution lived long before Max Weber and they did not think in these particular sociological terms. (Indeed, the discipline of sociology would not be invented until the next century.) Yet one does not have to be a sociologist to understand that society is full of cultural meanings of superiority and inferiority, that groups exist in social hierarchies of relative status and prestige, and that some of these hierarchies are unfair and unjust. Indeed, the generation that fought the Revolutionary War understood all of these things. They had themselves lived through and participated in a social transformation that dismantled an older status regime: the American Revolution and its aftermath.
The American Revolution was not simply a political revolution; it was also a social revolution. As Gordon Wood has described in a book aptly titled The Radicalism of the American Revolution, the generation of 1776 consciously attempted to break free from the aristocratic social structure they had inherited from Great Britain.(92) They hoped to create in its stead not only a republican form of government but a new republican society, freed from the caste-like system of nobility and royal honors. They hoped to substitute a natural aristocracy of merit for the aristocracy of birth and social privilege. They hoped, in short, to breed a new sort of person, a republican citizen, equal to all and subordinate to none.
Although the revolutionary generation spoke in these broad phrases, their actual commitment to equality was more limited. They wanted to rid themselves of the bowing and the scraping, the snobbery and the undeserved prestige of noble birth and royal prerogative. Yet they did not extend their egalitarian social revolution to slaves, to women, to the poor, or to many other social groups. They saw only certain features of the status hierarchies of their day as worth fighting and dismantling. This is hardly surprising, for the leaders of the Revolution were for the most part themselves privileged men. They believed in a form of deference politics, in which the masses would and should defer to the “best” men.(93) Yet within a few generations, this halfway house between an older order and the new had largely broken down; deference politics was itself viewed as a relic of aristocratic pretension.(94)
The revolutionary generation, and the Framers and Ratifiers of the American Constitution, let loose an egalitarian revolution that went much further than they imagined or with which they themselves would have been comfortable. In the process of destroying the old order of nobility and aristocracy, and creating a new republican man, they set free forces of democratization that still carry us along today. But this is the fate of all great revolutions and all great revolutionary ideas; they are always more powerful than their progenitors. Often their original advocates seem in hindsight much closer to the ideas they themselves tried to leave behind. The American hunger for social equality has proved more lasting than any single generation’s interpretation of it.
B.The Constitution’s Status-Disestablishing Clauses
When we look at the Constitution, we can see that many of its elements–especially those in the 1787 Constitution–are designed to temper mass participation and hinder full social equality. They preserve and reinforce social inequalities even as they partially disassemble them; and the specter of the slave system haunts many of the clauses of the original Constitution. Yet what is more wonderful is that many other features of the Constitution seem specifically concerned with dismantling hierarchies of social status, and offering fair ground rules for the status competition that results. To be sure, these different clauses of the Constitution deal with only some of the features of status hierarchy, and often only fitfully at best; but that is because they are designed for many other purposes as well.
The most obvious examples of status-dismantling clauses occur in the Reconstruction Amendments, and particularly in the Thirteenth Amendment. The Thirteenth Amendment at one stroke abolished an entire system of chattel slavery, and called for the extirpation of its “badges and incidents.”(95) Because status inequality is more than legal distinction, the elimination of slavery should have also included the elimination of the system of cultural meanings that made slavery possible. Hence dismantling the badges and incidents of slavery should also have included the full elimination of the system of white supremacy that allowed generations of blacks to be subordinated to whites. Here too, the generation that began a revolution was unwilling to fully carry out its promises, and it has been left to us even today to redeem them.
The Fourteenth Amendment is another obvious example of a status disestablishing amendment. The Dred Scott(96) case had closely linked the status hierarchy of white supremacy to legal status by holding that blacks could not be citizens.(97) Section One of the Fourteenth Amendment extended citizenship to all persons born in the United States, thus demolishing the linkage between citizenship and race. It states that: “All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside.”(98) The citizenship clause is a second Declaration of Independence, announcing that equal citizenship would henceforth be available to all regardless of race or prior condition of servitude.
The Fourteenth Amendment was status-disestablishing in another important way. Its framers believed that the Fourteenth Amendment abolished all forms of so-called class legislation.(99) The very idea of a prohibition on class legislation seems puzzling to us today. In the modern world view, all legislation divides individuals and groups into classes and hence could be understood as a form of class legislation.(100) Yet the framers of the Fourteenth Amendment had something more specific in mind. The concept of class legislation had its sources in the Jacksonian era’s distrust of governments granting monopoly charters and other special privileges to the rich and powerful.(101) Class legislation in the Jacksonian sense was a government’s attempt to grant special favors to a specified class of citizens and hence elevate them above others both symbolically and legally.(102) The Jacksonians’ resentment of class legislation was tied to their suspicion of status distinctions among free white men; it went hand in hand with the crusade for universal manhood suffrage.(103) This egalitarian urge of Jacksonian democrats was connected to their resentment of Eastern financiers and monopolists, whom they saw as the great barriers to equality of opportunity for all free white male citizens.
In the terms of this Essay, the Jacksonian era was the time of another cultural struggle, in which white working men attacked the superior status of Eastern elites, accusing the latter of creating a new class of nobility based on corporate power and financial privilege.(104) The Jacksonian concept of “class legislation” was originally designed to oppose corporate charters and business monopolies, because of the fear that these would create a new class of economic “nobility” elevated above the ordinary white working man. By the end of the Civil War, however, the framers of the Fourteenth Amendment understood the concept as encompassing the converse phenomenon: legislation that denigrated or demeaned a group of persons and held them as less equal than others.(105) In his proposed joint resolution for drafting the Fourteenth Amendment, for example, Charles Sumner invoked the Jacksonian heritage when he claimed that the proposed Fourteenth Amendment should abolish “oligarchy, aristocracy, caste, or monopoly with particular privileges and powers.”(106) He spoke of monopoly and caste in the same breath, equating legislation that singles out groups for special treatment with legislation that demeans and stigmatizes groups as social inferiors. Likewise Senator Howard, the floor manager of the Fourteenth Amendment, offered an expanded interpretation of the Jacksonian principle. He argued that the amendment’s goal was to “abolis[h] all class legislation . . . . and [do] away with the injustice of subjecting one caste of persons to a code not applicable to another.”(107) Howard also seemed to equate the dangers of creating a new nobility with the dangers of maintaining a class of social inferiors.
The problem of unjust status hierarchy is implicated in several other clauses of the Constitution. For example, the Establishment Clause (especially after its application to the states through the Fourteenth Amendment) denies the state the right to establish a single church and thus label one particular status group as preferred over all others. As Michael McConnell has astutely pointed out, resolving the potential conflicts between different religious sects was the new nation’s first experiment with multiculturalism.(108) The First Amendment guaranteed that religious groups would and could compete with each other for converts, but the federal government (and later the states) would not be permitted to show favoritism toward any of them. Thus the Religion Clauses are both a means of status disestablishment and a means for providing rules of political fairness for the ensuing status competition.(109)
Two of the most important status-disestablishing provisions appear in the original 1787 Constitution. They are the Bill of Attainder and Titles of Nobility Clauses.(110) As Akhil Amar has recently argued, the Bill of Attainder Clauses are designed to prevent governments from singling out and punishing identifiable groups because of who they are.(111) In recent years Bill of Attainder cases have often concerned the government’s attempts to brand and punish specific individuals.(112) Yet Amar reminds us that the Clauses were also originally designed to protect social groups, including groups bound together through ties of descent and kinship.(113)
The Titles of Nobility Clauses are perhaps even more important examples. These Clauses have little meaning for us today precisely because of the success of the American Revolution in dismantling a profound and pervasive form of status hierarchy. Although the Constitution speaks of “titles” of nobility, the concern was with much more than mere bestowal of titles. Nobility was far more than the right to use a particular name. It was an entire social system of superiority and inferiority, of habits of deference and condescension, of social rank and political, cultural and economic privilege.(114) Gordon Wood points out that the hierarchy of aristocracy was defended on grounds of seemingly natural differences between the nobility and common folk: “So distinctive and so separated was the aristocracy from ordinary folk that many still thought the two groups represented two orders of being . . . . People often assumed that a handsome child, though apparently a commoner, had to be some gentleman’s bastard offspring.”(115) Conversely, “[i]n our egalitarian-minded age it is difficult for us to appreciate the degree of contempt with which the aristocracy and the gentry of the traditional monarchical society had regarded the lower orders.”(116) The latter, “when they were noticed at all, were often regarded as little better than animals.”(117)
When the Framers and Ratifiers of the Constitution denied both the states and the federal government the right to grant titles of nobility, they tried to stamp out this pernicious system of social hierarchy. They feared monarchy not only because of the tyranny of kings but because the monarch was the social and symbolic head of an entire system of social prestige based on nobility. Thus, in many different ways the Framers and Ratifiers tried to ensure that nothing like a hereditary monarchy or a hereditary nobility would ever rise up in the United States.(118)
The Framers’ and Ratifiers’ opposition to monarchy was part of a larger social revolution against the social hierarchy that monarchy symbolized. Their crusade against nobility was the true radicalism of the American Revolution: the dismantling of monarchical order and aristocratic privilege in the name of liberty and equality.(119) From this perspective we can see how the Titles of Nobility and Bill of Attainder Clauses serve complementary functions. The first prevents state maintenance of a status hierarchy by prohibiting the creation of a group of social superiors; the second prevents the state from singling out particular individuals, or more importantly, particular groups, as social pariahs.(120)
Moreover, each of these status-dismantling clauses implicitly relies on the asymmetry of status hierarchies. Status hierarchies are asymmetrical because higher and lower status individuals are not social equals. Hence the cultural meanings of their actions as well as actions directed against them may differ significantly. For example, when a higher status person teases a lower status one, the act may be interpreted as bullying or lording over a social inferior; but a lower status person’s teasing a higher status person may be understood as a permissible tweaking of the sensibilities of those higher up in the status hierarchy.(121) The cultural meaning of government benefits also differs for high and low status groups. If the government directly benefited high status groups–for example, if it created an affirmative action program for whites–it would appear to be reinforcing or approving of existing status hierarchies; but when it benefits lower status groups, it is more likely to be seen as dismantling or at least counteracting them.(122)
The prohibitions of the Bill of Attainder and Titles of Nobility Clauses depend on this asymmetry of status relations. As a result, both are asymmetric in their concerns. As Amar notes, Bills of Attainder are concerned with social exclusion rather than social inclusion. Laws that single some persons out for disfavored treatment because of their identity “are in tension with our constitutional tradition, and should be strongly disfavored.”(123) Yet, Amar explains, laws that single out individuals or groups for inclusion rather than exclusion do not violate this principle.(124) For example, a bill that singles out a particular individual for deportation is constitutionally different from a private immigration bill that allows a single person to remain in the United States.(125)
Favored treatment of individuals or groups on the basis of their social identity can violate the 1787 Constitution, but only if this treatment rises to the level of creating or perpetuating a title of nobility. However, the Titles of Nobility Clauses are also asymmetric: They concern only the maintenance or creation of social hierarchy through law, not the destruction of such a hierarchy. Moreover, not all government benefits violate the Clauses; to do so they must help create a set of meanings of social superiority. Merely singling out an individual for a special benefit is a far cry from creating or attempting to create a new Brahmin-style caste or a new social elite. Just as the Bill of Attainder Clauses are not violated by the attempt to raise the status of lower level groups, neither are the Titles of Nobility Clauses violated by attempts to dismantle status inequalities.
The debate over affirmative action looks quite different from the standpoint of these “sociologically informed” clauses of the Constitution. Consider education as an example. Admission preferences that attempt to increase the number of historically disadvantaged minorities are not a bill of attainder against white applicants, for they do not single whites out as social inferiors. They do not turn blacks and Hispanics into a new class of aristocrats.(126)
Admission preferences clearly do not send the message that racial minorities are superior human beings by virtue of their identity. Whites may grumble that blacks and other minorities are getting “special treatment,” but they would hardly view these preferences as a governmental assertion that blacks have higher social status or have a greater share of positive qualities and social esteem. To the contrary, so powerful are the social meanings of race and ethnicity in this country that affirmative action preferences often create the opposite social meaning among whites. They see these preferences as further evidence of the inferiority and unworthiness of racial and ethnic minorities.(127) Even if they do not believe themselves prejudiced, many whites still regard themselves as social superiors to blacks, and blacks still retain many cultural associations of inferiority. As long as “[t]he white race deems itself to be the dominant race in this country,”(128) as Justice Harlan put it, racial preferences cannot be construed as Titles of Nobility.
In fact, admissions preferences have a very different symbolic effect: They are a sign of increased political clout. The ability of racial minorities to demand and receive affirmative action shows that they have gained increasing status in American society. This combination of symbolic and material benefit creates real status anxiety among white Americans, and has led to predictable forms of backlash.
C.Status Hierarchy and Caste
Following Kenneth Karst’s seminal work, many scholars have used caste as a central organizing concept in antidiscrimination law. They have pointed to stigma and the perpetuation of caste-like relationships as the touchstone of constitutional concern.(129) There is ample historical precedent for this. As we have seen, several framers of the Fourteenth Amendment specifically made analogies to caste. Justice Harlan’s famous dissent in Plessy v. Ferguson insisted that “[t]here is no caste here” in the United States.(130) As Dan Farber and Suzanna Sherry have noted, many Supreme Court opinions have stated that various provisions of the Constitution forbid legislation that creates or maintains social caste.(131)
Generally speaking, American constitutional lawyers have tended to use the word “caste” as a general term of disapproval, but with virtually no attention to whether their usage matches the nature of existing caste systems.(132) Rather, what they have meant by “caste” has usually been some form of status hierarchy.
In the early 1980s Paul Dimond articulated what he called the anti-caste principle: “[E]ach person has the right to be free from the continuing effects of caste discrimination in the laws, programs, official decisions, government, and community affairs of these United States.”(133) Dimond’s version of the anti-caste principle requires government to take affirmative steps to eliminate the past effects of caste discrimination.(134) Like Karst’s equal citizenship principle, it also prohibits government action that “perpetuate[s] longstanding stereotypes that stigmatize a racial minority as inherently inferior or undeserving compared to the white majority.”(135)
Just as Dimond’s original anti-caste principle was specifically concerned with race discrimination, Cass Sunstein’s later version also focuses on the social subordination of a limited set of groups.(136) It “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.”(137) This anti-caste principle deals with “a special problem of inequality”(138) that “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.”(139) Sunstein emphasizes that the group affected has to be systematically disadvantaged “in multiple and important spheres of life”(140) in ways that affect “basic participation as a citizen in a democracy.”(141) These realms of life may include, among others, “education, freedom from private and public violence, income and wealth, political representation, longevity, health, and political influence.”(142)
Sunstein’s principle is designed to focus only on limited forms of status hierarchy: in particular, those based on race, sex, and disability.(143) The poor are not protected: first, because they “represent a broad, amorphous, not easily identified, and to some degree shifting group”;(144) and second, because Sunstein’s principle is specifically designed not to upset existing market forces significantly.(145) Jews, homosexuals, and Asian Americans are not protected because although they suffer discrimination, they do not suffer systematic disadvantage in many spheres of life.(146) Moreover, in the case of homosexuals (and in the case of some Jews, though not male Orthodox Jews and haredim), group membership is not necessarily visible.(147)
Sunstein’s anti-caste principle does not insist on any single criterion of social stratification. As he himself emphasizes, his criteria for inclusion are pragmatic rather than sociological.(148) As a result, his restriction of the anti-caste principle to race, sex, and disability is somewhat arbitrary. First, the patterns of reproduction of status hierarchy are different in each of the cases he is concerned with.(149) Second, the social stereotypes and cultural meanings employed to maintain the hierarchy also differ for each group. Third, as Farber and Sherry have noted, restricting the “definition of caste to visible characteristics”(150) is false to actual caste systems; for example, it “might paradoxically exclude the Indian untouchable caste.”(151) Fourth, exclusion of the poor from the anti-caste principle seems particularly odd given that Sunstein’s originalist justification for the anti-caste principle is the founding generation’s social revolution against the monarchy and the prerogatives of nobility, reflected in the Titles of Nobility Clauses.(152) But this revolution was itself about social class (an amorphous category even then) and decidedly not about race, gender, or disability.
The more basic problem with Sunstein’s version of the anti-caste principle, however, is that it makes no attempt to connect its criteria to any sociological account of how stratification occurs in actual caste systems. In this sense, it is truly an “anti”-caste principle, for it has little to do with the actual sociological phenomenon of caste.
Daniel Farber and Suzanna Sherry have suggested that the Fourteenth Amendment includes a much narrower “pariah principle”: The government cannot create or sanction pariah or outcast groups.(153) Treating “a group of citizens as pariahs . . . imposes two unacceptable harms. It simultaneously brands them as inferior and encourages others to ostracize them.”(154) Farber and Sherry argue that this principle operates not only in equal protection cases, but in Bill of Attainder and Eighth Amendment cases.(155) However, their principle is a very limited claim about equality. It is not really an attempt to map features of social practice onto legal doctrine. It is not a general demand for equality in the face of unjust social stratification, nor is it concerned with systematic disadvantage. The “pariah principle” is limited only to the most extreme forms of exclusion like that faced by untouchables in a caste system, rather than an attack on general systems of social stratification.(156) The principle outlaws the tip of a much larger iceberg without asking how the tip arose or what supports it.
First, the principle focuses not on the general status of social groups or existing social hierarchies, but on whether the government has in any particular case treated a group like pariahs.(157)According to Farber and Sherry’s theory, a group like left-handed persons could be made pariahs by a single piece of legislation even if there were no previous history of discrimination against them and they were not a discrete and insular minority invoking heightened scrutiny.(158)
Second, mere creation of a stigma or a message of inferiority is apparently insufficient to invoke the principle. The message sent by caste legislation must be “even stronger: all right-thinking people should avoid any contact with those the legislation makes pariahs.”(159) “[P]ariahs,” Farber and Sherry explain, “are not simply the group at the bottom of the social or economic ladder.”(160) They are “shunned and isolated, . . . treated as if [they] had a loathsome and contagious disease.”(161) To violate the pariah principle, the government must send “[t]he message . . . that outcasts are not merely inferior [but that] they are not fully human, and contact with them is dangerous and degrading.”(162) The demand of such extreme isolation tends to mesh poorly with Farber and Sherry’s first claim that a group’s general social status is irrelevant. It is difficult to imagine a society that would want to send so extreme a message about a group that had not already suffered a history of discrimination. Generally speaking, pariah status does not usually come from nowhere; it is usually the result of a gradual accumulation of negative associations and social meanings of inferiority.(163) Thus, Farber and Sherry offer an extremely limited equality principle isolated from other forms of unjust discrimination. As a result, their “pariah principle” is abstracted from the actual social processes that produce the kinds of extreme legislation to which their principle would apply.
American constitutional theorists’ romance with “caste” as an explanatory category needs serious reappraisal. Although Justice Harlan’s famous words have probably made it too late to jettison the expression “caste,” social stratification in the United States does not really match the technical definition of caste. “Caste” is really a metonym used by constitutional scholars to describe a set of different forms of unjust social hierarchy, of which true caste relations would be only a very extreme example not currently found in this country. Hence “caste” is at best an effective hyperbole; it is used to describe a number of different methods of unjust social stratification and a number of different forms of unfair status competition. But these forms of hierarchy are no less unjust simply because they do not conform to a rigorous definition of caste.
D.Which Groups? Which Hierarchies?
I have been urging a shift from a model that focuses on discrimination and equal treatment to a model that focuses on the existence and dismantling of unjust status hierarchy. This inquiry does not remove normative questions. It simply asks them in different ways. Instead of asking whether certain classifications should be regarded as suspect, I am asking whether certain status hierarchies exist that are so unjust that the Constitution demands their disestablishment.
Nevertheless, this inquiry into status hierarchy should not be confused with a general constitutional principle of equal protection. The Equal Protection Clause is concerned with many other things besides unjust status hierarchy. It serves many different functions–including assessing the rationality of tax legislation(164) or interferences with the right to travel.(165) Because all of these different functions are in some sense about equality, they tend to be confused with each other. We would be better served if we understood the problem of unjust status hierarchy as a distinct problem, to which other questions of constitutional equality may bear only a family resemblance.
Conversely, the constitutional principle of opposition to unjust status hierarchies is partially vindicated by the Equal Protection Clause, but it is also the concern of many other clauses as well. As I have argued above, the Constitution’s hostility to status hierarchy is not located in a single clause–one can find it in the Reconstruction Amendments, the Titles of Nobility Clauses, the Bill of Attainder Clauses, the Establishment Clause, and the Republican Government Clause. Thus, the principle I am elaborating overlaps with several clauses and is not the exclusive concern of any one of them.(166)
The problem of status hierarchy is not a purely descriptive problem. It is a question of unjust subordination. Yet if the Constitution does not oppose all status hierarchies, which ones does it oppose? What distinguishes the low status of homosexuals, for example, from social disapproval of gamblers, sluggards, gossips, opticians, and MTV watchers? Why is one an unjust status hierarchy while the others are not, or at least not so unjust that the Constitution should be concerned with them?
Gamblers, sluggards, gossips, opticians, and MTV watchers may be groups in the ordinary sense of that word, and some of them may even be interest groups in the political scientist’s sense. However, they are not currently status groups in an ongoing status hierarchy; and they are not groups who suffer overlapping and reinforcing forms of subordination and social disadvantage due to their place in that social hierarchy. This is not due to any physical property of these groups but a contingent fact of social history. There is no reason why a social hierarchy could not have been organized on any number of different lines, using any number of different traits. It happens to be the case, however, that mankind has tended to use skin color, gender, and religious belief as its most familiar technologies of social stratification and oppression. The Equal Protection Clause–and other clauses of the Constitution–may protect sluggards, opticians, and MTV watchers against various forms of government overreaching. Even so, this is not the sort of evil I am concerned with here.
My central concern is with those status hierarchies where status identity is a central feature of one’s social existence, and affects many different spheres of one’s life. There may be a status hierarchy between skiers and snowboarders. Being a skier rather than a snowboarder, however, is not a central feature of one’s social identity. It is not something that affects many overlapping aspects of one’s everyday interactions with others, or that has ripple effects in various parts of one’s life, including wealth, social connections, political power, employment prospects, the ability to have intimate relationships and form families, and so on. By contrast, being a black person as opposed to a white person, or being female as opposed to being male, is a central feature of one’s identity, at least in contemporary America. It does affect a large percentage of one’s personal interactions with others, and it has many mutually supporting and overlapping effects.
Homosexuals are in a somewhat different situation because their social identity depends on how far out of the closet they are and to whom. For fully out homosexuals, their identity does have significant overlapping effects, for they cannot have homosexual marriages, their relationships are not sanctioned by law, and they are subject to discrimination, harassment, and moral denunciation. Homosexuals can hide their identity by staying in the closet, but this merely means that they purchase some degree of higher status by their inability to announce what they are to the world. Thus their homosexuality affects their interactions with others by virtue of its absence, somewhat like interactions between whites and those blacks who are sufficiently light-skinned to “pass” as white while retaining an internal sense of being black.
In short, unlike snowboarders or skiers, homosexuals are a social group whose status is central to their general social identity. Moreover, unlike these other groups, homosexuals exist in a fairly overt hierarchy of status, in which they and their lifestyle are routinely condemned as immoral, abnormal, deviant, and against the laws of God and Nature. The status hierarchy that places homosexuals beneath heterosexuals is different in many important respects from the system of social meanings used to keep blacks in an inferior position, but it is no less real. Not only is homosexuality subjected to intense social disapproval, but homosexuals are still subject to de jure discrimination in many areas, including marriage and sexual relationships. Homosexuals can avoid legal and social disabilities only by remaining in the closet; the stresses and strains in their lives resulting from this masquerade are simply the flip side of the disabilities they suffer from making their sexual orientation public.
But that is hardly the end of the matter. It is not enough that homosexuals exist in a status hierarchy sustained both by law and by social custom. They must also exist in an unjust status hierarchy. Why is the hierarchy of heterosexuality over homosexuality unjust? Even if this hierarchy is gradually breaking down in social custom and convention, why should the Constitution use its authority to accelerate the trend?
The answer to this question does not depend on the existence or absence of so-called immutable characteristics. It depends rather on the nature of the status hierarchy; it depends on the social meaning of being homosexual. To decide whether a status hierarchy is just or unjust, we have to examine the justice of the system of social meanings that create and perpetuate that status hierarchy.
The comparatively low status of homosexuals in a society dominated by heterosexuals derives from a more general status hierarchy organized around gender. This hierarchy defines masculinity and femininity in heterosexual terms and bestows higher status on the former.(167) This status hierarchy is unjust because it organizes social structure, distributes dignitary and material benefits, and shapes and justifies people’s life chances through systematic privileging of things associated with being male over those associated with being female. Due in part to the success of previous social movements, our society has formally repudiated gender discrimination as unjust; nevertheless, the set of social meanings that privilege masculinity over femininity continue to permeate our social existence in multiple and overlapping areas of life. Homosexuals occupy low status because they transgress this set of meanings. If this status hierarchy is unjust, then discrimination against homosexuals, which forms an important part of this system, is also unjust, and the Constitution should assist in dismantling it.
The social bias against homosexuality is part of the preservation of traditional gender roles and stereotypes, which are both heterosexual and patriarchal. Society discriminates against homosexuals because homosexuals violate heterosexual understandings about what it means to be male and female. Homosexuals transgress social meanings about gender that help constitute gender identity. This system of meanings defines masculinity and femininity in terms of complementary traits and attraction to the opposite sex. Men are defined as people who are attracted to women; women are defined as people who are the object of sexual attraction by men. More importantly, this system of social meanings about gender is itself part of an unjust status hierarchy that privileges males and things associated with maleness over females and things associated with femaleness. Males and masculinity are defined not only in terms of their opposition to females and femininity, but in terms of their superiority.
Homosexuality, and especially male homosexuality, threatens this conceptual order because it undermines the clarity of traditional heterosexual male and female gender identities, and hence undermines what are judged to be appropriate male and female social roles, authority, and power. By failing to conform to the heterosexual definition of masculinity, gay men appear both to surrender their masculine privileges and to threaten the masculine privileges of other males. First, by being attracted to other men–a sign of femininity–they cheapen or ambiguate the masculinity and manliness of heterosexuals. Second, the mere presence of homosexual men causes heterosexual men to imagine that they could be objects of sexual desire by other men, which leads them to fear that they will be “feminized” and hence emasculated.(168) This fear is particularly threatening precisely because the system of social meanings does not treat men and women equally: To play the role of “woman” is to be dominated and subordinate. In like fashion, lesbians threaten the conceptual order of male and female because they are attracted to women. They undermine the subordinate role of femininity because they refuse their roles as wives and mothers within a traditional heterosexual family.(169)
Homosexuals have low status because they transgress a set of social meanings about gender that define heterosexuality. This is a causal explanation of a social phenomenon of discrimination and not a claim about the inherent nature of either gender or homosexuality. This subordination is unjust on its own terms and not derivative from the subordination of women. Andrew Koppelman has recently argued that the taboo against homosexuality is wrong because of sexism. In other words, he is arguing that “compulsory heterosexuality keeps women in relationships in which men exert power over their lives.”(170) By contrast, I am not claiming that discrimination against homosexuals is merely a “side effect” of discrimination against women, and therefore somehow less important. Therefore it is important to avoid several possible confusions about the argument.
First, I am not claiming that discrimination against homosexuals is unjust because it worsens the situation of straight women. I am claiming that gender categories are general forms of social subordination that subordinate the feminine and all things associated with the feminine. Thus, this system subordinates not only women, but homosexuals, bisexuals, and effeminate men.(171)
Second, the argument does not require clear-cut distinctions between homosexual and bisexual identity. Nor does it assume that sexual orientations and gender identities cannot exist along a continuum. A continuum also transgresses the dominant set of social meanings, which is essentially bivalent.(172)
Finally, I am not claiming that “gender” and gender identities are simply what heterosexuality defines them to be. Homosexuals and bisexuals may have their own views about gender and gender identity which may conflict with dominant views.
What I am claiming is: (1) that there are a dominant set of social meanings about gender that benefit heterosexuals and view heterosexuality as normal; (2) that these social meanings are also patriarchical in that they privilege masculinity over femininity and view things associated with the feminine as inferior or subordinate; and (3) that they are the source of heterosexual disapproval of homosexuality and bisexuality, which are judged as deviant from the point of view of this system of social meanings.
What threatens gender hierarchy is not so much what homosexuals do as the meaning of what they do. Because meaning matters, heterosexuals can deal with the threat of homosexuality in two different ways: They can pretend that it does not exist, or, if this is not possible, they can openly castigate it and declare it abnormal, immoral, and deviant. Each strategy helps preserve the traditional system of gender relations as normal, natural, and justified. Homosexuals who stay in the closet do not threaten the system of social meanings, because they do not appear as transgressors. However, if they do make an issue of their identity, it is important to demarcate them as outliers whose behavior is abnormal and immoral.
Just as whites have a stake in the preservation of their racial identity, so too heterosexuals (and particularly heterosexual men) have a stake in the preservation of their gender identity. Homosexuals undermine social meanings about gender that perpetuate male supremacy; homosexuality also threatens notions of family organized around patriarchal privilege. Demands by homosexuals for increased status–which include challenging the idea that they are immoral and deviant–undermine the superordinate identity of heterosexuals as surely as demands by blacks or women undermine the superordinate identities of whites and males.
Thinking about homosexuality in terms of social hierarchies helps explain why not all sexual taboos are equally suspect. For example, a standard objection to the protection of homosexuals is that they cannot be distinguished from other sexual deviants, in particular pedophiles. However, a status-based analysis helps show why this argument is unpersuasive.(173)
Pedophiles tend to prey on both girls and boys. There is no reason to think, therefore, that discrimination against pedophiles stems from a desire to preserve unjust traditional gender roles or an unjust set of social meanings about gender. Pedophiles do not transgress gender roles. Indeed, the common stereotypes that pedophiles are disproportionately homosexual–or that homosexuals are disproportionately pedophiles–are false and offensive reflections of antihomosexual bias. They attempt to degrade homosexuals by associating them with particularly reprehensible forms of sexual deviance.
Furthermore, sexual relationships with children are inherently exploitative, or so likely to be exploitative that society has good reasons for forbidding them as a class. By contrast, there is no reason to think that sexual relationships between adult homosexual men or adult homosexual women are inherently or predominantly exploitative. In particular, there is no reason to believe that relationships between adult homosexuals are likely to be more exploitative than heterosexual adult sexual relationships, whether in or outside of marriage. Even though sexual exploitation between adults goes on all the time, it makes more sense to try to prohibit this sexual exploitation directly than for society to outlaw all adult sexual relationships for fear that some of them might be exploitative. A similar logic, however, does not apply to sexual relationships between adults and children.
The argument that sexual relationships between adults and children are exploitative is surely a moral (and political) judgment. How is this moral judgment different from the moral disapproval of homosexuality? The point of a status-based analysis is not to disregard moral objections simply because they are moral; if that were so we could make no moral judgments at all, including those about the need to dismantle unjust status hierarchies. Rather, the point is that because people use moral arguments to justify existing status hierarchies, we must try to be morally critical about claims of morality. The question is whether moral condemnations are linked to the preservation of an unjust form of status hierarchy. If they are, the Constitution cannot defer to majoritarian moral judgments simply because they are moral judgments. Conversely, absent a persuasive argument that moral disapproval of pedophilia is deeply connected to the preservation of an oppressive social structure, we should leave the legality of pedophilia to judgments of democratic politics.
The reason to be suspicious of moral condemnation of homosexuality is the existence of a pervasive social hierarchy organized around social meanings of masculinity and femininity, a hierarchy which homosexuality transgresses. To be similarly suspicious about our moral condemnation of pedophilia as exploitative, we would need more than hypothetical moral disagreement about the proprieties of sex with children. We would need an account of social structure that justifies our suspicions. We would have to show that the present taboo against adult-child sex in our current society is systematically connected to the oppression of an identifiable social group due to its refusal to assign children an unjustified and inappropriate role of relative sexual innocence. We would have to show that no psychological, physical, or emotional harm comes to children from early sexual relations with adults and that adult-child liaisons do not reflect unfair relationships of power, but are healthy for adults and children alike. Finally, we would have to show that the reason for the taboo lies elsewhere: that it is part and parcel of a system that attempts to preserve a monopoly on sexual activity for adults alone, wrongfully oppresses children who stray from this prohibition, and wrongfully subjugates the adults who attempt to facilitate their sexual liberation, particularly fathers who attempt to “liberate” their daughters.
Perhaps I am wrong about this, but I doubt very much whether a convincing argument of this sort could be made. It simply rings false as a claim about how social structure is currently organized in this country.(174) The phenomenon of pedophilia appears to be, if anything, less a transgression of oppressive sexual taboos by courageous eight-year-olds than a problem of adults (and particularly male adults) asserting sexual privileges and sexual power over children. It seems to have much more in common with patriarchal dominance than with antihierarchical revolution.
In short, the status-based analysis advocated here is not simply an open invitation to disregard moral values we dislike. It requires us to ground our critique in a convincing account of social structure; it demands that we describe how society is stratified and explain what produces this stratification.
Analyzing discrimination in terms of status groups also helps us understand our objections to discrimination more clearly in situations where courts hold that the Constitution already proscribes it. Discrimination against blacks, for example, is not unjust simply because race is an immutable characteristic. Focusing on immutability per se confuses biological with sociological considerations. It confuses the physical existence of the trait with what the trait means in a social system. Racial discrimination is wrong because of the historical creation of a status hierarchy organized around the meaning of skin color. The question to ask is not whether a trait is immutable, but whether there has been a history of using the trait to create a system of social meanings, or define a social hierarchy, that helps dominate and oppress people. Any conclusions about the importance of immutability already presuppose a view about background social structure.
Indeed, a focus on immutability makes sense only as long as we recognize its relationship to social structure. Social hierarchies often assign differential social meanings to immutable traits because they make exit from low status more difficult.(175) But not all immutable characteristics are or have been the basis for unjust social hierarchies, and not all unjust social hierarchies are founded on immutable characteristics.
Religion is not an immutable trait–many religions are always looking for new converts–but status-based discrimination against religious groups is surely also unjust. Defenders of the immutability criterion can point to the Religion Clauses as an independent justification for protection of religious minorities; but this puts the cart before the horse. The Religion Clauses exist in part because the Framers recognized that religious intolerance was an evil long before they recognized that racial intolerance was.
The importance of immutability as a criterion of judgment is also sometimes defended on the grounds that immutable characteristics–for example, race–are morally irrelevant. But this argument, too, really depends on a view about the justness of a particular status hierarchy. When status distinctions are internalized in a culture, status hierarchies make traits morally relevant. They become signs of positive and negative associations. They become permissible proxies for inferences about character, honesty, ability, and judgment. Such traits are morally irrelevant only to persons not in the grip of that particular hierarchy. In the aristocracy of pre-Revolutionary America, for example, high birth was viewed as correlating with many other positive attributes–honesty, sagacity, learning, and good manners–and society was organized to make these positive associations a self-fulfilling prophecy. Generations of whites thought blacks naturally inferior; succeeding generations who learned not to make biological arguments have nevertheless continued to regard blacks as culturally inferior–as displaying negative qualities of sloth, violence, and licentiousness. A characteristic becomes “morally irrelevant” precisely when we understand the status hierarchy it is based on to be unjust. Only then do we become embarrassed to use the trait as a signifier of, or a proxy for, positive or negative associations. Our objection to the moral relevance of the characteristic is really our objection to the system of social meanings and the hierarchy of social status that uses this trait as a criterion for judgment.(176) The real issue is whether society has created an unjust status hierarchy organized around a particular trait or set of traits, whether those traits are immutable, or–like religion–voluntarily chosen or instilled through socialization.
Notes
88. Romer, 116 S. Ct. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
89. In fact, our largely libertarian doctrines of free speech seem to embrace the idea of rough neutrality in cultural struggles. Status inequality is reproduced through systems of cultural meaning, but much cultural meaning is created, reproduced, and transmitted through expression. The First Amendment guarantees the existence of a sphere of public discourse in which different status groups can attempt to shape and control their own cultural associations and the cultural associations of groups with which they compete. No group is given the right to a monopoly over the cultural meanings associated with it; it must win the battle over cultural meaning through its own effective use of speech. For an argument about government regulation of racist speech along these lines, see Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 Wm. & Mary L. Rev. 267 (1991).
90. Abraham Lincoln, Address at Gettysburg, Pennsylvania, in Abraham Lincoln, Speeches and Writings 1859-1865, at 536 (Don E. Fehrenbacher ed., 1989). For an excellent discussion of Lincoln’s theory of the Declaration as expounding the deep meaning of the Constitution, see Garry Wills, Lincoln at Gettysburg: The Words That Remade America 88-89, 101-08, 118-20, 130-33 (1992). Lincoln, in turn, drew on an entire tradition of antebellum thought that accorded a special place to the Declaration as representing a transcendent ideal that continually tests the Constitution and to which the American polity aspires. See id. at 103-20.
91. For a discussion of the political meaning of the Constitution in terms of the “project” of the Declaration, see Mark Tushnet, The Constitution Outside the Courts (Oct. 26, 1996) (unpublished manuscript, on file with author).
92. See Wood, supra note 68, at 240-43, 276.
93. See id. at 253-55 (explaining that Framers thought that officers of new federal government would be “disinterested gentlemen” or “wise and virtuous elite”). On the phenomenon of “deference politics,” both in England and America, see Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 169-79, 248-49, 285-87, 305-06 (1988).
94. See, e.g., Wood, supra note 68, at 298 (describing Federalists’ view of themselves as “natural gentry rulers of the society”); id. at 299-300 (noting that family connections and high birth gave way to party loyalty as test of who should receive nominations and appointments). The republican vision was quasi-aristocratic as well in its vision of the statesman who served the public without pay. This soon gave way to the salaried officeholder. See id. at 293-94.
95. The Civil Rights Cases, 109 U.S. 3, 20 (1883).
96. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
98. U.S. Const. amend. XIV, § 1.
99. This expression is used in Senator Howard’s famous speech on behalf of the Fourteenth Amendment. See Cong. Globe, 39th Cong. (1st Sess.) 2766 (1866). The framers of the Fourteenth Amendment actually used many different phrases to describe the concept, including the ideas of “equality before the law,” a prohibition of “special privileges,” and “equal justice for rich and poor alike.” See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 71-80 (1988). Whatever the language used, “[t]he idea that laws should be general and not tainted by considerations of class or caste was widely recognized and accepted before the fourteenth amendment was enacted.” Mark G. Yudof, Equal Protection, Class Legislation, and Sex Discrimination: One Small Cheer for Mr. Herbert Spencer’s Social Statics, 88 Mich. L. Rev. 1366, 1376 (1990).
100. See Nelson, supra note 99, at 138; Yudof, supra note 99, at 1378-82.
101. See Nelson, supra note 99, at 14-17; Michael Les Benedict, Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 Law & Hist. Rev. 293, 318-21 (1985).
102. As Jackson himself said in his famous veto message on the Second Bank of the United States, the law should not add “artificial distinctions” or seek to “grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful.” Andrew Jackson, Veto Message, July 10, 1832, 2 Messages and Papers of the Presidents 576-89 (Richardson ed., 1897), quoted in Paul Brest & Sanford Levinson, Processes of Constitutional Decisionmaking 52 (3d ed. 1992); see also J.R. Pole, The Pursuit of Equality in American History 145 (1978).
103. See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 35-38 (1993); Richard Hofstadter, The American Political Tradition 70-78 (1948).
104. See Hofstadter, supra note 103, at 70-79; Arthur M. Schlesinger, Jr., The Age of Jackson 132-33, 306-07 (1950).
105. On the transformation of the Jacksonian idea of class legislation, see Eric Foner, Free Soil, Free Labor, Free Men 90-91 (1970); Yudof, supra note 99, at 1379; cf. Nelson, supra note 99, at 18 (noting use of class legislation idea in antislavery rhetoric). Needless to say, Andrew Jackson himself would have been taken aback by this reinterpretation. See Pole, supra note 102, at 146.
106. Cong. Globe, 39th Cong. (1st Sess.) 674 (1866). The joint resolution failed, but the debate affected the final language of the amendment. See Andrew Kull, The Color-Blind Constitution 74-75 (1992); see also Adamson v. California, 332 U.S. 46, 51 n.8 (1947) (quoting Sumner’s resolution as evidence of meaning of Fourteenth Amendment).
107. Cong. Globe, 39th Cong. (1st Sess.) 2766 (1866).
108. See Michael W. McConnell, Multiculturalism, Majoritarianism, and Educational Choice: What Does Our Constitutional Tradition Have to Say?, 1991 U. Chi. Legal F. 123, 131-34.
109. Justice O’Connor’s “endorsement” test makes considerable sense in terms of status categories. O’Connor argues that the government violates the Establishment Clause when its actions have the purpose or effect of endorsing religion or non-religion to a reasonable observer. Endorsement violates the Establishment Clause because the government may not make people’s religious beliefs or their membership in a particular religious group determinative of their political standing in the community. See Wallace v. Jaffree, 472 U.S. 38, 69-70 (1985) (O’Connor, J., concurring). In other words, government may not proclaim that people have higher or lower status based on their religious affiliation. When government action has the purpose or effect of endorsing religion, it sends a message to some members of the community that they are favored insiders; and it sends a message to others who adhere to different beliefs that they are disfavored outsiders, “not full members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
Justice O’Connor’s endorsement test has much in common with Charles Lawrence’s “cultural meaning” theory of equal protection. See Lawrence, supra note 2. Indeed, both tests have much in common with Karst’s original “equal citizenship” principle. See Karst, supra note 2. Lawrence argues that the government violates the Equal Protection Clause when it sends a message of cultural inferiority to racial minorities. See Lawrence, supra note 2, at 350-51, 355-56, 363-64. Like Lawrence, O’Connor focuses on the cultural meaning of contested governmental action. Like Lawrence, she does not require any deliberate government intent to degrade or harm; the mere effect of endorsement as judged by a reasonable observer is sufficient.
Justice O’Connor’s and Lawrence’s tests are similar because both are concerned with managing status competition: Both tests prohibit certain government actions that attempt to raise the status of some social groups at the expense of others. This project has two consequences. First, both tests require judges to investigate the cultural meaning of government action to determine if an injury to status has occurred. Second, both tests require a criterion of reasonableness to adjudicate inevitable disagreements about the meaning of what the government has done.
110. Because the two principles apply to both the states and the federal government, there are actually four clauses in all. See U.S. Const. art. I, § 9, cl. 3 (prohibiting federal bills of attainder);id. § 10, cl. 1 (prohibiting state bills of attainder); id. § 9, cl. 8 (prohibiting federal grant of titles of nobility); id. § 10, cl. 1 (prohibiting state grant of titles of nobility). The Republican Government Clause, id. art. IV, § 4, might also be read as status disestablishing to the extent that one believes that equal citizenship is a requirement of republican government. Cf. Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 Colo. L. Rev. 749, 750, 773, 782-86 (1994) (arguing that central guarantee of republican government is popular sovereignty, which implies constitutional guarantees of equal citizenship); Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol’y 37 (1990) (arguing that republican political theory creates obligation to redistribute property to create independent citizenry and give each citizen stake in society).
111. See Akhil Reed Amar, Attainder and Amendment 2: Romer’s Rightness, 95 Mich. L. Rev. 203, 218 (1996).
112. See, e.g., Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 847 (1984) (noting requirement of legislatively specified persons); Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468-69 (1977) (same); United States v. Lovett, 328 U.S. 303, 315-16 (1946) (same); see also Laurence H. Tribe, American Constitutional Law 643 (2d ed. 1988) (“The essence of the bill of attainder ban is that it proscribes legislative punishment of specified persons . . . .”).
113. See Amar, supra note 111, at 214-18. Similarly, Frederick Douglass argued that slavery violated the Bill of Attainder Clauses because they prohibit hereditary status disabilities:
The Constitution forbids the passing of a bill of attainder: that is, a law entailing upon the child the disabilities and hardships imposed upon the parent. Every slave law in America might be repealed on this very ground. The slave is made a slave because his mother is a slave.
Frederick Douglass, The Constitution of the United States: Is It Pro or Anti-Slavery?, in 2 The Life and Writings of Frederick Douglass: Pre-Civil War Decade 1850-1860, at 478 (Philip S. Foner ed., 1950).
114. See Wood, supra note 68, at 11-24.
118. The Federalist Papers took great care to distinguish the President from “a king of Great Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever,” and to emphasize the President’s limited powers and subjection to ordinary law. The Federalist No. 69, at 416 (Alexander Hamilton) (Clinton Rossiter ed., 1961). While a President “can confer no privileges whatever,” Hamilton argued, a monarch “can make denizens of aliens” and “noblemen of commoners.” Id. at 422. As Jack Rakove notes, supporters of the Constitution argued that the President would have no private fortune large enough to purchase a court of adherents or raise a private army on his own, and that the 35-year-old requirement (fairly old in eighteenth-century terms) would prevent most sons from immediately succeeding their fathers, because “`in the course of nature very few fathers leave a son who has arrived at that age.’” Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 276 & 408 n.98 (1996) (quoting A Native of Virginia, Observations upon the Proposed Plan of Federal Government (Petersburg, Va., 1788), in 9 The Documentary History of the Ratification of the Constitution 679 (Merrill Jensen et al. eds., 1976)). Ironically, the nation’s second President, John Adams, did have a son who later became President, but almost a quarter of a century after he left office.
119. Both concerns are equally important to this revolution. The Titles of Nobility Clauses, like other status-dismantling clauses of the Constitution, are not simply demands for equality. They are also demands for liberty. The Framers and Ratifiers well understood that inequality of social circumstances limits the liberty of those less well off by denying them equal opportunity. Even today social hierarchies inhibit opportunity and prevent individuals from self-realization and the ability to control their own lives. In dismantling unjust systems of status hierarchy, we must keep the connections between equality and equal liberty always in mind.
120. See Amar, supra note 111; Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 Const. Commentary 257 (1996).
121. Conversely, demands for deference and recognition shown by high status individuals may be understood as appropriate when similar demands by low status persons might be interpreted as “uppity,” “bitchy,” or “making a federal case.”
122. Precisely because direct government favoritism toward high status groups is increasingly viewed with suspicion, contemporary status hierarchies are usually supported by legal doctrines that make no direct reference to status categories like race or gender; nevertheless these doctrines may have highly disproportionate and predictable effects on different status groups. At the same time, status hierarchies adapt themselves so that they can be preserved and reproduced without overt legal support. Reva Siegel calls this adaptive transformation of status hierarchies the “modernization” of status regimes. See Siegel, supra note 36, at 2174-78. After modernization, preservation of the social status quo looks like a matter of formal neutrality or formal equality before the law, while status legislation that directly attempts to improve the lot of low status groups looks like “special treatment,” and indeed may be attacked precisely because it makes explicit reference to status categories. See Siegel, supra note 37, manuscript at 23, 29-33, 35-37; cf. MacKinnon, supra note 2, at 32-40 (critiquing equal treatment and difference approaches to gender equality).
123. Akhil Reed Amar, Justice Kennedy and the Ideal of Equality, 28 Pac. L.J. 517 (forthcoming Apr. 1997) (manuscript at 23, on file with author).
125. See id.; see also Amar, supra note 111, at 212-14.
126. See Amar, supra note 123, at 24. In Fullilove v. Klutznick, 448 U.S. 448 (1980), Justice Stewart tried to compare affirmative action policies to titles of nobility, arguing that they were “preference[s] based on lineage.” Id. at 531 (Stewart, J., dissenting). But Justice Stewart did not claim (nor could he) that, like titles of nobility, such preferences were a sign of the social superiority of racial and ethnic minorities. His comparison failed to acknowledge the most crucial aspect of a title of nobility: that it proclaims superior social as well as legal status.
127. Indeed, even though they facially benefit from racial preferences, minorities are hardly unconcerned that preferences might confirm or enhance rather than remedy social stigma. See, e.g., Stephen L. Carter, Reflections of an Affirmative Action Baby 11-17, 47-69 (1991).
128. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
129. Karst’s theory of equality, for example, “centers on those aspects of equality that are most closely bound to the sense of self and the sense of inclusion in a community.” Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution 3 (1989). Hence his “equal citizenship” principle holds that “[e]ach individual is presumptively entitled to be treated by the organized society as a respected, responsible, and participating member. Stated negatively, the principle forbids the organized society to treat an individual as a member of an inferior or dependent caste or as a nonparticipant.” Id.
130. Plessy, 163 U.S. at 559 (Harlan, J., dissenting).
131. See Farber & Sherry, supra note 120, at 266-70.
132. Generally speaking, in a caste system “society is divided up into a large number of permanent groups which are at once specialized, hierarchized, and separated (in matter of marriage, food, physical contact) in relation to each other.” Louis Dumont, Homo Hierarchicus: The Caste System and Its Implications 259 (Mark Sainsbury et al. trans., Univ. of Chicago Press 1980) (1970). These differentiations have in common the opposition of purity and impurity. “[T]his basic opposition can segment itself without limit,” creating multiple orders of caste. Id. The idea of mutual opposition is central to the idea of caste, so that society as a whole is the unity of the castes in their mutual relations to each other. See id. Although a hierarchy of castes seems to divide society, it actually unifies it by “connecting it to what appears to it to be universal, namely a conception of the cosmic order.” Id. at 260. Note that within this definition, women do not form a separate caste. Rather, the exchange of women through marriage is a means through which caste is reproduced over generations. Society is organized and reproduced through rules of marriage and descent. See id. at 123-24. Nor does this definition reflect religious discrimination, because members of different castes often share common religious beliefs. Indeed, the hierarchy is often based on religious cosmology and justified by reference to shared religious belief. See id. at 260.
Modernized Western societies lack “caste” in this strict sense, because they no longer conceive group distinctions–between the races, for example–to be based on a natural order that unifies and gives meaning to society as a whole. Western thought has abandoned ideas of a natural social order in order to pursue a “rational” social order. Western societies still feature social stratification, to be sure, but this stratification is based on status and class distinctions, which bear important resemblances to traditional caste structures but are also importantly different.
133. Paul R. Dimond, The Anti-Caste Principle–Toward a Constitutional Standard for Review of Race Cases, 30 Wayne L. Rev. 1, 3 (1983).
136. See Cass R. Sunstein, The Anticaste Principle, 92 Mich. L. Rev. 2410, 2430 (1994).
142. Id. In this sense, Sunstein’s version of the anti-caste principle strongly resembles Owen Fiss’s group disadvantage principle. See Fiss, supra note 2, at 147-56.
143. See Sunstein, supra note 136, at 2438.
145. As Sunstein points out, he is most interested in “discrete contexts” in which it is hard to argue that current practices benefit the least well off, and
in which second-class citizenship is systemic and occurs in multiple spheres and along easily identifiable and sharply defined lines; in which the morally irrelevant characteristic is highly visible; in which there will be no major threat to a market economy; and in which the costs of implementation are most unlikely to be terribly high.
Id.
These concessions tend to beg the question whether the market might have any significant role to play in the perpetuation of “caste-like” relationships. Conversely, Sunstein’s hedging seems to suggest that if a system of social subordination would require disruptions in the economy to be corrected–for example, a massive redistribution from whites to blacks–the system of subordination is not caste-based. It is a sort of cost-benefit approach to defining caste rather than a sociological one.
146. See id. at 2443. Thus not all racial discrimination falls under Sunstein’s anti-caste principle. Sunstein does not address whether the principle would have applied to the treatment of Chinese immigrants in the nineteenth century or Japanese Americans during World War II.
148. See id. at 2429, 2432 (noting pragmatic considerations behind his definition).
149. To give only one example, traditional caste systems like those in the Indian subcontinent are perpetuated through lines of descent enforced by marriage rules and taboos. Generally speaking, untouchables are expected to marry untouchables, and their children inherit their caste ranking. See Dumont, supra note 132, at 109 (describing general rule of endogamy). Generally speaking, illegitimate sexual unions result in loss of status to the child. Illegitimate children are usually identified with the mother’s social group if she is of inferior caste. See id. at 115. Discrimination against African Americans is closest to this system, especially given its long connections to the system of slavery. Generally speaking, the children of slaves were born into slavery, even if their real fathers were their white masters. See Davis, supra note 30, at 48-49; Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209, 225-27 (1995); Dorothy E. Roberts,Race and the New Reproduction, 47 Hastings L.J. 935, 943 (1996). Enormous legal and cultural efforts went into preserving the social identity of race both during the period of slavery and the later Jim Crow era. Examples are rules against miscegenation (often opportunistically and hypocritically enforced), rules against racial intermarriage (often rigorously enforced), and the legal rule of hypodescent, in which “one drop of black blood” made a person black. See Davis, supra note 30, at 47-58. Denial of familial relations between whites and blacks, even when they clearly existed, coupled with social segregation, tended to reproduce a system much closer to Indian-style caste.
By contrast, disabled individuals do not always pass on their disabilities to their children, and approximately half of the children born to women are not themselves women. Nor, as far as I am aware, has any legal rule of hypodescent been applied in the United States to children of women or the disabled. Women are the wives, daughters, and mothers of the men who are elevated above them, and disabled persons are usually family members of the nondisabled.
150. Farber & Sherry, supra note 120, at 273.
151. Id. The restriction lacks historical sense as well. The terms and devices of social stratification change over time. Religious affiliation is not always visible, but it has often served as a marker of social status. Jews are comparatively well off in the United States today, but even as late as the early 1950s they were subject to rampant discrimination in education and employment. See, e.g., Harold Braverman, Medical School Quotas, in Barriers: Patterns of Discrimination Against Jews 74, 74-77 (N.C. Belth ed., 1958); Albert Weiss, “Jews Need Not Apply”, in id. at 43, 43-47. According to Sunstein’s criteria, Jews would never have been the beneficiaries of the anti-caste principle if being Jewish is not a visible trait.
In any case, the “visibility” of “Jewish traits” is itself a historical construction. It depends on many factors, including the cultural practices of Jews themselves–for example, whether they are largely secular or largely orthodox. As society changes, the saliency of cultural markers varies over time. When anti-Semitism was more socially acceptable, Jewish identity may have been more visible to some people, precisely because more people looked to it as a means of discrimination. See Sunstein, supra note 136, at 2432. Conversely, because Jews are largely integrated into American society (and because the intermarriage rate is astronomical), Jewish identity may seem less salient.
152. See Sunstein, supra note 136, at 2428-29.
153. See Farber & Sherry, supra note 120, at 265-67.
159. Id. at 271. Despite this requirement, the psychological consequences of the message of inferiority are apparently irrelevant to Farber and Sherry. The pariah principle is not concerned with the self-esteem of the outcast group, but “is primarily focused on the victims’ right to participate in civil society.” Id. at 272.
163. An example of a pariah status that could develop in a very short time would be a group that had contracted a previously unknown disease like AIDS. Even in that case, pariah status would rest in part on a long history of social dread and irrational behavior toward people with disease.
164. See Nordlinger v. Hahn, 505 U.S. 1 (1992).
165. See Shapiro v. Thompson, 394 U.S. 618 (1969).
166. Constitutional clauses often exist for a number of different reasons and embody a number of different principles. The Equal Protection Clause, for example, is concerned with many forms of inequality other than unjust hierarchies of status. It is concerned with unfair political procedures and unfair allocations of material advantage regardless of whether these are part of status hierarchies. Moreover, courts use the Equal Protection Clause to address the constitutionality of many forms of economic and social legislation, ranging from tax abatements to restrictions on ice-skating rinks. Indeed, part of the difficulty in constitutional law’s recognition of the problem of status hierarchy is that the tools it offers to analyze the problem serve many different functions. The fact that the status disestablishment principle can be found in the Equal Protection Clause, for example, can lead us to imagine (incorrectly) that the problems of equality are the same across different areas of social life.
167. See Andrew Koppelman, Antidiscrimination Law and Social Equality 146-76 (1996); Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. Miami L. Rev. 511 (1992); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187.
168. See Koppelman, supra note 167, at 159 (describing system of social meanings in terms of taboo against homosexuality).
171. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1, 3 (1995).
172. See Janet E. Halley, Reasoning About Sodomy: Act and Identity in and After Bowers v. Hardwick, 79 Va. L. Rev. 1721 (1993); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503 (1994).
173. As a threshold matter, it is by no means clear that pedophiles form a distinct status group. Although being a pedophile is certainly low status, it is not clear that pedophiles currently understand themselves as a social group with distinctive claims to honor and esteem. By itself, this strikes me as an insufficient reason for distinguishing discrimination against homosexuals from discrimination against pedophiles. Political groups like the North American Man-Boy Love Association already exist. Pedophiles might have their own equivalent of Stonewall, and attain some measure of group consciousness. The real question is how we know that discrimination against pedophiles and the criminalization of pedophilia are not reflections of an unjust status hierarchy, in the same way that discrimination against homosexuals and criminalization of homosexual sodomy are.
174. To be sure, childhood and childhood sexuality are deeply problematized in contemporary American society. Parents may be increasingly protective and fearful about their children’s sexuality. Their concern over childhood sexuality and their continual need for reassurance about the sexual innocence of children may lead to hysterical and unjustified allegations of child abuse. But these phenomena hardly demonstrate that most children are being sexually oppressed by their inability to form consensual sexual relationships with adults, or that adults who seek to have sex with children are victims of an oppressive social structure.
175. Although often so-called immutable traits need considerable support from law and culture to remain stable markers of superiority and inferiority. Legal and cultural rules defining who is black and white are good examples. See sources cited supra notes 30, 149; infra note 187.
176. Again, it is sometimes thought that the problem is that immutable traits are linked to stereotyping. Yet stereotyping is simply a pejorative expression for the types of social generalizations we use in everyday social judgement: for example, that fast food is unhealthy, or that Republican politicians are beholden to big business. Surely not all fast food is unhealthy, and some Democrats are probably more in the pocket of malefactors of great wealth than some Republicans. What makes stereotypes constitutionally objectionable is that they are part of a system of social meanings used to oppress some groups and benefit others.