Balkinization: “Low but solid ground in the struggle for equality”

“Low but solid ground in the struggle for equality”

Guest Blogger

For the symposium on Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

George Thomas

Let me begin where Robert Tsai closes in Practical Equality: “So beware of purists who would lead you to glorious, spectacular defeats when everyday suffering can be reduced through less glamorous, persistent labor” (230). To achieve equality, Tsai calls on us to become less enamored with abstract notions of justice and more attentive to winning real results in a deeply divided and deeply imperfect world. Tsai’ central argument is rooted in what he dubs pragmatic egalitarianism against the backdrop of deep political divisions.

Tsai urges us not to give up on equality and justice in a divided age, but to recognize that second best solutions are often preferable. That’s because such solutions provide the plausible solid ground for us to work on given that we often disagree profoundly on what the “best” solution would be. Tsai calls this a “constitutional duty” (7). Given a constitution that intentionally divides power while fostering a pluralistic society I think that’s right; it also happens to be smart politics. I hope the Democrats vying for the presidential nomination read it; all the more so as it is written in a lively and conversational tone to speak to fellow citizens (if from a left-liberal perspective). Please get Beto a copy.

One of Tsai’s central concerns is the harm of sweeping defeat as seen in cases like Dred Scott and Plessy v. Ferguson. These “tragic precedents” not only rejected claims of racial equality but did so in sweeping ways that caused further social strife and made the achievement of racial equality more difficult in the long run. In finding that blacks—free or enslaved—could not be citizens and “had no rights which the white man was bound to respect,” the Court gave formal sanction to the further inhuman treatment of black people; it also disheartened those who struggled for equal recognition and constitutional rights. The outcome of Plessy was equally demoralizing. Indeed, it invited the growth of state mandated racial apartheid, the legacy of which we as a nation are still paying for.

Cautioning against such defeats, Tsai pushes for a focus on particulars (and often process) that is more likely to advance the case for equality. The idea of simple fair play should have wide appeal. Putting such claims in factual and empirical terms can help bring us to agreement by taking “some of the heat out of the debate” (71). Consider Yick Wo v. Hopkins (1886). San Francisco passed a city ordinance requiring that all laundries operate out of buildings constructed of stone or brick to prevent fire hazard. Yet the city also allowed owners of laundries operating out of wooden buildings to petition a city board for an exception to the ordinance. When the facts of the case came out, it turned out that such petitions were denied to all of the two-hundred plus owners who were Chinese, while the board granted seventy-nine out of eighty requests by whites. Even more, Yick Wo, a Chinese national who legally resided in the US, had operated his laundry for over two decades in a wooden building that had been inspected by the fire chief. The facts pointed to an unfair process where the board favored whites and discriminated against Chinese owners. The Court agreed, “though the law itself be fair on its face and impartial in its appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”[1]

Less well known from the era is San Francisco’s “Queue Ordinance,” which required men held in city jails to have their hair cut to within an inch of the scalp. The regulation prohibited men from wearing a “queue,” a braid of hair traditionally worn by Chinese men. While the law itself did not single out the Chinese, the facts of the case made clear that the law was only applied to the Chinese. In fact, it became evident the law was a hostile punishment aimed at the Chinese that served no legitimate public purpose. As Justice Stephen Field put it, in a circuit court opinion, the queue ordinance inflicted a punishment on the Chinese that was “disproportionate” because it was not “equally borne by others” (138-139).

Drawn together, these cases illuminate Tsai’s insistence on facts and practical principles like fair play. While Tsai points to Yick Wo as an example of the “rule of reason” and the “Queue Ordinance” as an example of “no cruelty,” both highlight how these common sense understandings can work together. In focusing on the facts of the case, in each instance the state was forced to offer a reasoned justification of its regulation, which did not fit with the actual facts. The result was to draw out unequal and unfair treatment that could not be reasonably justified by the facts before us. In the latter case, it also showed a particular form of cruelty: inflicting harm on a group not for reasons of policy, but merely to degrade them. But what these cases truly show is redeeming the principle of equal treatment by focusing on procedural fairness and facts that reveal unfair treatment. And they do so against a pervasive backdrop of anti-Chinese sentiment. While an abstract principle of equality is clearly at the heart of each case, neither case pushed such abstract arguments that may well have failed given racial attitudes in late nineteenth century America.

Tsai doesn’t shy away from contemporary debates, which make up the bulk of the book as will be obvious from the other posts. Practical Equality is less about formal constitutional law than the sort of constitutional norms and habits of mind he’d like to inspire in citizens and politicians, as well as in judges. Yet while Practical Equality is written to find common ground to advance the cause of equality, one gets the feeling it’s written for fellow left-liberals to provide a roadmap for trimming their sails in troubled times so they may better advance their agreed upon egalitarian vision. Some of this is a function of the times. President Trump delights in casting doubt on the equal standing of racial, ethnic, and religious minorities. With barely a shrug, Republicans acquiesce.

Still, I suspect Practical Equality will attract a wide readership among progressives but have doubts that it will go beyond that circle. I don’t think that Tsai’s intent. Not simply because he makes nods to arguments that those on the right might find persuasive—especially his discussion of free speech and egalitarianism, for example. But Tsai’s arguments would apply equally to efforts by progressives to use the power of the state to harm religious organizations who did not readily approve of same-sex marriage. I say this as a longstanding advocate of the constitutional recognition of same-sex marriage. But in a pluralistic democracy, we shouldn’t punish religious organizations who don’t share this understanding for religious reasons. We must be able to accept as equal fellow citizens those who do not agree on this point, just as we ask such religious believers to accept same-sex couples as equal citizens. Tsai suggests as much at different points, but these concerns have to be teased out of his larger argument.

Critics could certainly wonder if Tsai is too prone to focus on second best arguments neglecting deeper questions of equality and justice. There’s no question, this is a deeply political book. It situates the push for equality in political terms. I’m not sure how else such values are actually achieved (which does not mean that more abstract philosophical arguments aren’t helpful here, it’s just they aren’t put forward in political and constitutional terms). Tsai makes the case for his pragmatism up front, but I would have liked to hear more from him on this score because I think his case is rooted in the very logic of a pluralistic democracy that accepts profound disagreement as a starting point. To the degree that Tsai asks us to search for ways we can push principled arguments forward in a manner that those who disagree with us can understand—meaning they are not always “pure”—that is all to the good in our pluralistic constitutional democracy.

George Thomas is Burnet C. Wohlford Professor of American Political Institutions at Claremont McKenna College. You can reach him by e-mail at gthomas at cmc.edu

[1] Yick Wo at 373-74.

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