The Constitution of Status– Part IV
Copyright 1997 Jack M. Balkin. All Rights Reserved.
E.Status Hierarchy and Democratic Culture
When we interpret civil rights in terms of status groups, we replace the inquiry into discrimination based on immutable traits with an inquiry into systems of social meaning and status hierarchy. In this way we make group conflict and group hierarchy central to the study of constitutional liberty. This way of thinking about group conflict sheds light on one of the Supreme Court’s oldest models for judicial protection of minorities: the famous Carolene Products footnote, written by Justice Harlan F. Stone.(177) In large part because of John Hart Ely’s work,(178)we associate this footnote today with a process-based theory of the Constitution and judicial review. I would like to suggest now that footnote four is also concerned with the problem of unjust status hierarchies in a democracy. In hindsight, the language of the famous footnote points, however awkwardly and haltingly, toward sociological as well as procedural concerns. Reinterpreted in this way, it offers an effective rejoinder to Justice Scalia’s thesis in Romer v. Evans. The Constitution cannot be neutral in cultural struggles because democracies will not always dismantle unjust status hierarchies on their own.
Implicit in the theory of Carolene Products is the insight that the merely formal features of democracy are insufficient. The Constitution demands more than democratic procedures; it also demands that we create a democratic culture. If American democracy is to survive, democratic processes must be nourished by democratic forms of social organization. Without the fertile soil of democratic culture, democracy will die; like an opportunistic weed, tyranny will spring up in its stead.The third paragraph of footnote four suggests that prejudice against “discrete and insular minorities” is a “special condition” that might undermine democratic processes, processes that would ordinarily be expected to protect minorities.(179) Implicit in this suggestion is a perceived conflict between democracy and prejudicial treatment of certain kinds of social groups. One reason for this conflict–most clearly implied by Justice Stone–is that when this “special condition” occurs, social groups are unable to form coalitions with other groups to protect their interests.(180) Beyond this, however, is a deeper and more important reason: Democracy and democratic culture are themselves incompatible with certain kinds of prejudices against social groups. This “special condition”–this prejudicial treatment of particular social groups–is ultimately corrosive of and threatening to democratic institutions and democratic culture.
Although not stated by Justice Stone, this second reason is essential to understanding and justifying the first. If democracy is simply the rule of the majority, then the preferences of the majority should ordinarily be sacrosanct.(181) If majorities want to preserve a system of social hierarchy–because it reflects their vision of morality and propriety–they should be permitted to have their way. This is, in yet another form, Justice Scalia’s theory about the proper role of constitutions in times of cultural struggle or Kulturkampf.
But democracy is not merely a formal theory about majority rule. Democracy is more than just a matter of letting majorities have their way, or, more correctly, it is more than a matter of letting elites elected by majorities have their way. It is also a theory about the proper organization of society and the proper mode of social relations. Democracy is premised on the establishment and preservation of a certain type of culture, a democratic culture. This deeper, substantive, and cultural vision of democracy is and must be opposed to unjust social hierarchy and caste, even when supported by a majority of citizens, and even when justified by appeals to morality and tradition.
This substantive vision of democratic processes supported by a larger culture of democracy is necessary to explain why we care about the inability of minority groups to form coalitions. After all, we do not worry about the inability of many interest groups to form successful alliances. If opticians are defeated by optometrists and ophthalmologists,(182) or if debt adjusters or skating rink owners fail to form winning coalitions,(183) we do not fear that democracy or democratic culture is undermined. If we are worried about the political prospects of some groups, it is because they exist in the interstices of a cultural system of subordination that we find profoundly and pervasively undemocratic. We care about them because we think that status hierarchies are hostile to democratic culture.
Justice Stone’s emphasis on “minorities” is connected to his view that democracy can ordinarily be expected to remedy unjust legislation. In some societies, the hierarchy of status is organized like a pyramid; comparatively few people are at the top, and the lower one’s status, the greater the population of one’s status group. As long as fair procedures are required (paragraph two of footnote four), democracy can be expected to undermine status hierarchy in the long run. Lower status people will simply have more votes. Recognizing that gains in status for some will mean corresponding losses for others, low status majorities will use the power of the state to increase their status at the expense of those higher up, resulting in a gradual movement toward status equality. Because status is a relative good, low status majorities can be expected to dismantle status hierarchies in procedurally fair democracies. That at least is the assumption, although the case of women tends to show that it is seriously incomplete.
However, in many societies–including our own–social stratification is shaped more like a vase than a pyramid. As before, there are comparatively few people with very high status; but members of very low status groups may also tend to be comparatively few in number. The largest group of people in the middle will have the most votes. It will tend to be fairly well-protected, but low status groups will not be. Here ordinary democratic processes work against the eventual dismantling of status hierarchy. The middle ranks of the status “vase” may well be tempted to keep some groups on the bottom because this reinforces their own comparatively high status. For example, white middle-class and working-class Americans might hope to retain the comparatively higher status of being white. In short, even in an otherwise well-functioning democracy, majorities may have an interest in perpetuating status hierarchies over low status minorities to preserve their status capital. This result is due less to failures of coalition building than to the fact that status is a relative good.(184)
This account shows us that Justice Stone’s language is entirely apt: Prejudice against “discrete and insular minorities” is a “special condition” that prevents democratic procedures from moving us toward a more democratic culture. However, the condition is not “special” because it is “exceptional”– because democracies normally do not feature status hierarchies. Indeed, democratic governments almost always exist against the backdrop of some forms of unjust status hierarchy. The problem has always been how to vindicate democracy in a society whose social organization is in important respects opposed to democratic culture. The condition Stone speaks of is “special” because it is a case where democratic procedures cannot be expected eventually to lead to a more democratic form of social organization. Here the zero-sum game of status politics works democracy into a rut, using the power of majorities to preserve unjust status hierarchies that they rightly see are in their interest to retain.
“Discreteness” and “insularity” are problematic terms. Neither term is synonymous with immutability. One might think the point is to protect “unpopular” groups. Yet political unpopularity is not the same thing as low social status in a status hierarchy. Rich people, for example, are often politically unpopular, but they do not have low social status. Quite the contrary: They are unpopular because they have high social status. Most people want to be rich even though they know that the rich are envied and resented; but most nonblacks do not want to be black. That is the difference between merely unpopular groups and groups on the bottom of a social hierarchy.
The language of “discrete and insular minorities” points, however awkwardly, toward the reality of status hierarchy and status competition in democratic societies. The metaphors of “discreteness” and “insularity” describe features of particularly egregious kinds of status hierarchies. They are inadequate metaphors because they describe special cases of more general phenomena. Both terms really refer to different forms of division and distinction through which status hierarchies are maintained and reproduced.(185)
Why emphasize this interpretation? The paradigmatic case of a “discrete and insular minority” in Stone’s footnote surely must have been African Americans. Yet neither metaphor really applies to the paradigmatic case. Take discreteness: African Americans do not have one set of skin colors, or one set of facial features. Their color varies from dark to light; some can hardly be distinguished from whites, Hispanics, or Asian Americans. Nor are African Americans always “insular” in a geographical sense. There are now many racially segregated communities in the United States. But they were not always thus, particularly in the Jim Crow South.(186) Indeed, during the height of slavery, blacks were clearly not geographically isolated; they lived alongside whites. They were simply subordinate to them in all respects. A similar point can be made about women. Women are not geographically isolated from men but live with them as wives, daughters, and sisters.
We can make better sense of these metaphors if we reimagine them in terms of status hierarchies. Discreteness and insularity are metaphors of division that describe, albeit from a limited perspective, certain features of particularly egregious status hierarchies. “Discreteness,” for example, really concerns the cultural categories that distinguish groups. In a status hierarchy, cultural markers–including dress, language, appearance, behavior, systems of belief, styles of life, or even so-called immutable characteristics–demarcate members of status groups and organize them into hierarchies. “Discreteness” refers to what distinguishes people into groups so that stratification can proceed. Yet the metaphor is also partly misleading because this semiotic organization can exist either in binary categories or along a continuum. For example, it is possible both for whites to have higher social status than blacks, and for lighter-skinned blacks to have higher social status than darker-skinned blacks. Discrimination against darker-skinned blacks by lighter-skinned blacks should not be constitutionally unprotected simply because there is no bright line that separates them.(187)
“Insularity” is also a metaphor of division. The lower status of subordinated status groups can make them “insular,” but not necessarily because they live by themselves. The metaphor is misleading to the extent that it suggests geographical separation. Insularity really concerns the multiple and mutually reinforcing terms of a group’s subordination. As I have argued previously, the Constitution is and should be concerned with status groups whose identity pervasively affects their interactions with others. Members of “insular” low status groups suffer from any number of forms of exclusion and separation that mark off social superiors from social inferiors–ranging from housing patterns and membership in social organizations and family alliances, to business contacts and the ability to form political coalitions. What these examples all have in common is not geographical isolation, but forms of separation and exclusion–in whatever sphere of life–that connote social inferiority. Insularity in this sense refers to the various and mutually supporting forms of social division that simultaneously symbolize, enact, and reinforce social superiority and inferiority.(188)
Today we tend to read Justice Stone’s words in light of the doctrinal glosses on equal protection that came afterwards: a relatively rigid system consisting of three tiers of scrutiny, with their accompanying verbal formulae. But at the time Stone wrote, he was making a simple point. The Supreme Court had just decided to overthrow the practice of judicial review of legislation of the Lochner era, and substitute a new practice of judicial deference based on respect for democratic processes. Hence all legislation was to be granted a strong presumption of constitutionality.Carolene Products is written in precisely these terms. The problem facing Stone and his colleagues was why a court would ever strike down anything at all. Why not always defer? To justify judicial intervention, Stone had to have a theory of what special situations would not justify the presumption of constitutionality. This theory required, among other things, a theory of what democracy was. This is the predicament of the 1937 revolution: To truly respect democracy one has to have an understanding of what it is one is respecting. Otherwise, one may end up, in the name of democracy, deferring to political actions that corrode and destroy it. One can “respect” democracy so much that one is left with something very different in its place.
That is why Justice Stone’s theory of process representation really rests on a deeper meaning of democracy, democracy as premised on democratic culture. This theory of democracy has its roots in the social transformation that accompanied the American Revolution. The revolt against monarchy and aristocratic privilege is the heritage that informs and should inform our vision of democratic culture. It is an ideal toward which society strives, but which it never fully achieves–a world in which citizens are equal not only civilly and politically, but also socially, in which all unjust distinctions of rank and prestige have melted away. True democracy rests on democratic culture, and democratic culture remains an unfinished project.
Each of the essays in this Symposium touches on different examples of group conflict and different aspects of status competition and status hierarchy. Their concerns range from gay rights to school choice to race-based voting districts.
Robin Barnes’s piece describes the problems of African-American parents who want to improve the quality of their children’s education.(189) Her story of the fight over Mark Twain’s The Adventures of Huckleberry Finn is a classic example of a status conflict, in which each side feels the other lacks proper understanding and respect.
Rick Pildes argues that the Supreme Court’s voting rights cases beginning with Shaw v. Reno(190) are best understood as remedying dignitary harm to groups–in effect, harm to group status.(191) The Supreme Court has held constitutionally suspect majority-minority districts with bizarre shapes, but has suggested that districts with relatively regular and compact shapes pose no such problem. Pildes explains this distinction in terms of the message sent to constituents. Bizarrely shaped districts suggest that some groups have received special treatment on the basis of race, while compact districts do not send so blatant a message of racial favoritism. In Pildes’s analysis, appearances do matter, because symbolism matters. Thus the harm the Court seems to be concerned about in Shaw and its progeny is actually an injury to group status, in this case the racial status of white voters.
Finally, both Bill Eskridge and Robert George attempt to find ways out of the zero-sum game of status competition.(192) For George, the answer lies in a proper understanding of political theory. Liberal theory cannot offer a remedy to group conflict until it takes account of continuing and deep divisions in world-views. Eskridge believes that courts can help bring parties together through expressing respect for both sides. By showing empathy for both positions, a court can fashion accommodations that give each side some measure of dignity and respect.
The status-based approach I have offered in this Essay argues that we cannot understand how constitutional doctrine should be organized until we understand how society is organized. It requires us to look carefully at the structure of the society in which we live, to identify social stratification where it exists, and to recognize the possible connections between the moral justifications that majorities offer and the preservation of their superior status. This approach is flexible and open-ended. Social hierarchies appear in many forms and degrees: We should not imagine that there is a single test or a single clause of the Constitution that can deal with all of them fully and adequately.
The social transformations begun by the American Revolution are by no means completed; nor has this country achieved a fully democratic culture. Like the words of the Declaration itself, the legal doctrines developed at any period of time will always be imperfect articulations of the democratic ideal. Indeed, because law is part of social structure, legal doctrines will usually be complicit in preserving status hierarchies even when they claim to be dismantling them.
We cannot avoid having constitutional doctrines simply because they may turn out to be inadequate or imperfect. But we can avoid believing that the truth about society is described within them. Thinking about social equality in terms of status gives us some distance from the project of doctrinal exegesis. It gives that task a deeper meaning; and it helps preserve the open-ended character of our inquiry. This open-endedness is necessary to the fulfillment of the ideal of democratic equality expressed in our Declaration. Perhaps if we pay attention to the constitution of status, we can bring that ideal a few steps closer to reality.
181. That is, unless they violate the Bill of Rights, which is the concern of paragraph one of the footnote. Even here a court might defer to the majority’s reading of what constitutes a violation of the Bill of Rights.
184. Nevertheless, because populations are not uniformly distributed, minorities may hold a much higher percentage of the vote in specific areas: Blacks and Hispanics in large urban areas or homosexuals in specific cities like San Francisco and Aspen, Colorado. This may allow them to form winning coalitions with other groups despite their lower status. In larger areas however, their minority status reemerges. To some extent this explains the politics of Romer: Boulder and Aspen had gay rights ordinances that were nullified by statewide referendum. This phenomenon is the flip side of the Madisonian notion that small communities tend to produce oppressive factions that are avoided in a national political process. See The Federalist No. 10 (James Madison).
185. I do not claim that the Justices who joined Stone’s opinion were covert social theorists. They were lawyers trying to understand the political and social problems of their times. They knew of America’s racial problems, and the dangers of religious intolerance. They saw Fascism brewing in Europe. During the years immediately before and after the 1937 constitutional revolution they had decided several cases protecting religious and ethnic minorities, but it was not clear to them how judicial review that protected minorities could be reconciled with the new thesis of judicial deference. See J.M. Balkin, The Footnote, 83 Nw. U. L. Rev. 275, 297 (1989).
Their preliminary ideas on the problem of minority rights were unclear and unformed. They were dropped into a footnote, a mere placeholder for a discussion to be offered later. See id. They combined sociological insight with a rather primitive pluralist model of interest group politics. They offered a suggestion expressed in metaphors, not a well-worked-out theory. Yet what these Justices said makes as much sense in the language of status as it does in the language of procedural perfection. If the metaphors are imperfectly suited to describe the reality of status hierarchy, they are even less well-suited to describe procedural obstacles of interest group pluralism. See Ackerman, supra note 180, at 724-28.
Behind the Carolene Products footnote, I claim, is something more than an intuition about pluralist bargaining, or the special capacities of legally trained jurists to devise and enforce fair procedures. It is the recognition that social hierarchies are the enemy of a well-functioning democracy because they undermine the possibility of a democratic culture necessary to support democratic processes. Both democracy and democratic culture are, in the long run, in tension with any sustained and ossified system of social superiority and inferiority.
186. For example, busing was sometimes used as a tool of segregation because blacks and whites lived sufficiently close together that neighborhood school policies would not effectively segregate the races. See, e.g., Green v. County Sch. Bd., 391 U.S. 430, 432 (1968) (finding that although New Kent County was not residentially segregated, white and black students were bussed to schools on opposite sides of county).
187. See Taunya Lovell Banks, Colorism: A Darker Shade of Pale (Mar. 1996) (unpublished manuscript, on file with author). Precisely because it was not always easy to tell who was white and who was black, racial categories were defined and reinforced through legal rules of hypodescent. See Davis, supra note 30, at 54-55, 62-63, 78-79, 113-14.
188. To see the advantage of this interpretation, consider once again the case of homosexuality. Under the traditional understanding of Carolene Products, the fact that many homosexuals are closeted (or out to some people but not to others) creates a significant problem. Homosexuals could be understood either as discrete and insular (to the extent that they are out) or as anonymous and diffuse (to the extent that they remain partly or completely closeted). See Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531, 548 (1992); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753, 1809-10 (1996).
This problem does not occur under my interpretation of insularity. Because insularity refers to the social meaning of homosexuality, homosexuals are insular whether or not they are closeted. To identify themselves as homosexual is to invite distancing, separation, and stigmatization. To fail to identify as homosexual requires them to pass as heterosexual, or, at the least, not to call attention to their homosexuality.
Homosexuals can live and work alongside heterosexuals, but often only by hiding their homosexuality. For example, in the Hurley case, the Irish-American organizers of the St. Patrick’s Day parade were willing to allow homosexuals to march in the parade as long as they did not identify themselves as such. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338, 2347 (1995). If they insisted on identifying themselves, they would have to be excluded. Similarly, under the military’s “don’t-ask-don’t-tell” policy, homosexuals may serve in the military as long their sexual orientation is not revealed. Once it is revealed, they must be excluded from military service. This is social separation achieved through other means. The same argument applies to all groups who have the possibility of passing as members of superordinate groups, including light-skinned blacks.
192. See William N. Eskridge, Jr., A Jurisprudence of “Coming Out”: Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 Yale L.J. __ (1997); Robert P. George, Public Reason and Political Conflict: Abortion and Homosexuality, 106 Yale L.J. __ (1997).