American Constitution Society Looks for Equality in the Constitution

BY JEFFREY JAMISON

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Before a packed Austin East, the American Constitution Society kicked off the year with the first installment of its Judge-a-Month program featuring U.S. Circuit Court of Appeals Judge Guido Calabresi. Calabresi, who was appointed to the Second Circuit by President Clinton in 1994 and is a Sterling Professor Emeritus of Law and former Dean at Yale Law School, opened his speech by waxing about his first day as a clerk for Supreme Court Justice Hugo Black. It was September 11, 1958, and the court had been called into an emergency session to hear Aaron v. Cooper – ordering the enforcement of a plan to desegregate the public schools of Little Rock, Arkansas. Solicitor General Rufus Rankin was asked whether education would suffer if troops were needed to enforce desegregation. Calabresi recalled that Rankin stopped, literally spun around three times, and said, “I concede that, I concede that, I concede that. I concede that lives will be lost if troops are needed to desegregate the schools, and I want this court to tell the nation that there are some values that are greater than life itself, and equality is one of them.” The Court accepted General Rakin’s challenge and the next day unanimously ordered enforcement of the desegregation plan. Calabresi then asked the audience whether we as a society really believe that equality is greater than life, and what does that mean?

Calabresi, borrowing from Professor Bruce Akerman, suggested that there have been three great constitutional moments in America’s history: the framing of the Constitution, the post-Civil War amendments, and the New Deal. The theme at the heart of each of these moments, he argues, was equality. Calabresi explained that within the Constitution there are two traditional egalitarian amendments – the 1st and 14th Amendments – each drafted to encompass the principle theory of equality of their times. The First Amendment’s establishment and free exercise clauses were, Calabresi suggested, in response to the religious wars of the 17th century. The framers spoke in terms of total equality when crafting the First Amendment. He argued that it was the intention of the framers that there be no “we” religions or “they” religions, but that all were to be equal, and that each religion, no matter how small, had the right to “flaunt” themselves. He called the First Amendment “an extraordinary statement of equality” – a statement that the Court has never contradicted, with the exception of Justice Scalia’s dissent in McCreary County v. ACLU (one of the Ten Commandments cases decided during the 2004 term.)

To Calabresi, the First Amendment is truly egalitarian in that it tells the government to stay out of religion because everyone is equal. He argued, however, that the 14th Amendment is entirely remedial and stands for the proposition that to give equality, you may need to treat some people differently. Calabresi also opined that, unlike the First Amendment, the 14th Amendment contains a psychological catch that suggests individual groups cannot flaunt their differences, “we will go out of our way to give you equality, but don’t act too differently.” The framers of the 14th Amendment, Calabresi believes, were writing with the First Amendment in mind, hoping that our society would one day reach total symmetry between the “we” and “they,” so that 1st Amendment level of equality, with full “flaunting” privileges, would be reached by all groups in our society. When will that day happen? Calabresi is not sure. He explained that Justice O’Connor’s 25-year goal embodied in the Michigan affirmative action cases does not literally mean 25 years, but someday in the future. The question for the various minority groups, according to Calabresi, is: what type of equality are you seeking, 1st or 14th? Do you wish to be treated equally or differently? Ultimately though, he argued, equality will place burdens on society.

Calabresi suggested that understanding the burdens of the 14th Amendment requires an appreciation of the burdens that the 5th Amendment places on society. Returning to his Aaron v. Cooper story, he asked the audience, “Whose lives will be lost for equality? Not the Justices or their family and friends. To get the poor black person working in the steel mill is an admirable thing, but problematic if a poor white person bears the burden.” Calabresi argued that the Takings Clause of the 5th Amendment, in principle, requires that society bear the burden of equality. Calabresi explained that Scalia’s concurrence in Cruzan provided one of the strongest examples of this proposition, “Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Calabresi believes the challenge lies in how we answer the Washington v. Davis conundrum of sharing the burden of the disproportionate impact of our laws: “The operative question is would we have this rule if it applied to everyone? And the only way we can know if an inconvenience is worth it is if we can bear it ourselves.” It is not enough, however, he added, paraphrasing Scalia’s formal equality structure, to say that “the law in its majestic equality prohibits the rich and poor alike from sleeping under bridges.” Due to the inherently disproportionate effects of some laws, Calabresi suggested that a show of commitment to equality by those who oppose a woman’s right to choose would be to require men who engage in sex to give up their kidneys or bone marrow to help preserve life. He also criticized some on left, or the “limousine liberals,” who take the “not in my backyard approach,” by suggesting that they are being disingenuous by refusing to bear the burden of equality. Sometimes, Calabresi continued, abandoning a course of action because we don’t want to bear the burden is what needs to occur.

Calabresi concluded by arguing that equal protection has two forms: the 5th Amendment control function and a substantive right that says people must be treated equally. Essentially, Calabresi explains, the latter says we must have it, and former says we have to pay for it ourselves. He warned that “avoiding equality by not paying for it ourselves is constitutionally cursed,” and the future of equality in America depends on “our willingness to ensure substantive equality and to pay for it ourselves.”

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