Balkinization  

Wednesday, May 28, 2008

Larry Tribe on Liberty and Equality

Guest Blogger

Larry Tribe

I’m delighted that the symposium at the University of Tulsa Law School honoring my work triggered this intriguing exchange between two of the most exciting contributors to that event, Heather Gerken and Kenji Yoshino. I have followed their continuing conversation with great interest and find myself, perhaps unsurprisingly, in broad agreement with both of them except insofar as they appear to disagree with each other.

Kenji is undoubtedly right that the “too many groups” problem will worry the current Supreme Court and its plausible successors for the foreseeable future, and that this worry puts something of a ceiling on realistic aspirations and thus on useful strategies for making progress along the equality axis. And Heather is undoubtedly right that the “too many individuals” problem would give the same Court and its successors qualms that prevent the “one right at a time” strategy from entirely solving the problems plaguing the “one group at a time” strategy. The very things about the language of universalism that make the “liberty” strategy appealing to some (like me) no doubt make it frightening to others.

But it seems to me that the resolution of this puzzle is to be found not in dividing to conquer but in uniting to assuage. Michael Tomasello, co-director of the Max Planck Institute for Evolutionary Anthropology, has a lovely little piece in The New York Times Magazine for this May 25 (at p.15), “How Are Humans Unique?” Asking that ubiquitous question, he defends an answer focused less on our distinctive tool-making and concept-manipulating capcities than on our quite unique skills for social learning, communicating and construing the intentions of others. Tomasello makes a strong case for the proposition that it is because human beings “are adapted for such cultural activities — and not because of their cleverness as individuals — that human beings are able to do so many exceptionally complex and impressive things.” He adds that, “[o]f course, human beings are not cooperating angels; they also put their heads together to do all kinds of heinous deeds. But such deeds,” he observes, “are not usually done to those inside ‘the group.’ Recent evolutionary models have demonstrated what politicians have long known: the best way to get people to collaborate and to think like a group is to identify an enemy and charge that ‘they’ threaten ‘us.’ . . . The solution — more easily said than done — is to find new ways to define the group.”

Is it too audacious to hope that a strategy can proceed by cautious steps that sometimes speak the language of groups (when we are ready as a culture to enlarge the group we think of as “us”) but at other times speaks the language of rights (when we are ready as a culture to perceive a right as universally appealing), eschewing any a priori preference between the two? Isn’t that the very prospect that makes the Obama candidacy so exciting?

Like Heather, I’d rather see gay-rights cases stand with Brown than with Roe, but not for any readily generalizable reason. For me, what has always made Roe v. Wade uniquely difficult, indeed sui generis, isn’t the character of the liberty the woman in the case must claim but the nature of the countervailing interest or right that the challenged exercise of her liberty would jeopardize, a feature that is dramatically less present in Lawrence and in the same-sex marriage cases than it was in Roe.

The strategy that for me promises the greatest glimpse of the infinite is a strategy that resists rigid compartmentalization and that reaches across the liberty/equality boundary to recognize the ultimate grounding of both in an expanding idea of human dignity.

Comments:

"The strategy that for me promises the greatest glimpse of the infinite is a strategy that resists rigid compartmentalization and that reaches across the liberty/equality boundary to recognize the ultimate grounding of both in an expanding idea of human dignity."

Exactly correct. Always ask the questions and employ the strategies that have the largest universe of answers and outcomes.
 

in an expanding idea of human dignity

Finding the ultimate grounding of both in human dignity certainly makes sense, because both liberty and equality, left alone, often insult human dignity.

Nowhere will this be more evident than in the coming debate regarding the use of genetically enhanced gametes and same-sex conception technology. Libertarians claim a liberty right to create a person in their basement lab however they damn well please. And many egalitarians feel that only animus or bigotry could possibly stand in the way of giving gay people access to technology that could enable gay couples to have biological offspring like hetero couples do. But both of their arguments are not grounded in human dignity, they reach across the human dignity line (even an "expanding idea" of human dignity). Being offered a chance to create children from genetically modified gametes insults the human dignity not only of the person being created, but even more so, of the person being offered it. What, are their gametes, which they got from their parents just like every body else did, not good enough? What, are they not fully worthy of respect and appreciation unless they produce offspring or something?
I'd say that human dignity is maximized by accepting that there are limits to equality and liberty, such that there is no limit to human dignity.
 

"Stop me if you've heard this one before..." [with apologies to PMS_Chicago, who came up with the brilliant idea]:

Three men walk into a bar. The bartender asks the first man, "What'll you have?" The guy responds, "I'll have a beer." The bartender nods and gets the guy a beer.

He turns to the second guy. "What about you, buddy?" The second guy thinks for a second and says, "I'll have a shot of whiskey." "You bet," says the bartender, and he gives the guy a shot of whiskey.

And you? What's your poison?" the bartender asked the third guy. Without batting an eye, the guy responds, "Being offered a chance to create children from genetically modified gametes insults the human dignity not only of the person being created, but even more so, of the person being offered it. What, are their gametes, which they got from their parents just like every body else did, not good enough?"


<*bah-da-bump*>

Point of the joke? Oh. Right. If you have nothing new and on-topic to say, you're better off talking to a bartender. There was a reason "John Howard" is the only person I know of here whose comments got deleted by the adminisrator previously.

Cheers,
 

The strategy that for me promises the greatest glimpse of the infinite is a strategy that resists rigid compartmentalization and that reaches across the liberty/equality boundary to recognize the ultimate grounding of both in an expanding idea of human dignity.

How does this expanding area of human dignity square with the limits of Article 3 of the Constitution? Or is Article 3 infinite, too?
 

Mortimer,

Allow Professor Tribe his muse. When constitutional law professors are communing with the deep spirit of the Law, what emerges is often like poetry, philosophy, or song...
I've seen it in every one that was worth his or her salt....

At the Law's inner heart, the brightness blinds and we hear a song of expanding human dignity, of redemptive purpose, and the fulfillment and safe passage of human potential.....
 

I too hope Professor Tribe continues to muse about dignity, and perhaps relates his thoughts of human dignity to the debate happening in the reproductive arena, among people like Leon Kass and Stephen Pinker. Stephen Pinker thinks dignity is a useless concept, so perhaps Lawrence Tribe can explain how equality and liberty are both grounded in dignity. It would be a great contribution to a very pressing question.
Though many foolish people don't want anyone to think about it, humanity is on the verge of totally changing the way humans are created. The entirety of American jurisprudence is based on people being created equal, and the people are created is by being the offspring of a man and a woman. No one has ever been created any other way. But some people think that we should allow people to create people other ways, enhancing their traits, or allowing people to create them without participation of both sexes. This is a major change in how we are created, which would result in having to re-write the Declaration's basis that we are all created equal. It simply wouldn't be true anymore. For it to be true, we have to limit certain claims of liberty, we have to limit certain views of equality, so that dignity reigns and equality and liberty are allowed to flourish within their boundaries.
Professor Tribe, I hope you are not afraid to discuss issues that might come before the court soon: do you think there is a right to manipulate gametes to create people, or would a ban on using modified gametes (and hence, a requirement to cooperate with someone of the other sex) be constitutional. And heck, if it a ban isn't constitutional, should we trust the Constitution with humanity's future? Please help us determine our future thoughtfully.
 

One more reflection on Professor Tribe's lyrical ending paragraph (and similar ones we have read from Professor Balkin.)

To rework Edsger Dijkstra's apothegm on computer science:
perhaps Constitutional law is no more about the Constitution than Computer Science is about computers.

If this were not in some sense true, than there would be no real reward in investing a lifetime on the topic.
 

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